Tuesday, April 10, 2007


A Person’s Right To Choose

Natallie Evans today lost her final appeal to put her freedom of choice entirely above her ex-partner’s and use embryos fertilised with him before she became infertile. It’s heart-rending to see her distress, but while I feel sympathy for her, I have none for her abhorrent demands. If a man with testicular cancer hounded his ex-partner through the courts to force her to implant and carry his last-chance embryo right up to birth, would any news outlet have given him a couple of seconds, let alone – as News 24 did this afternoon – reverentially broadcast an entire press conference?

This case seems a tragic moral dilemma, but despite having followed several stages of it – even having an impassioned argument with my Mum last year on the failure of Ms Evans’ previous appeal – it’s always seemed to me that reproduction by demand would completely destroy the rights based on consent that have built up in this country. Ms Evans has said she’s “distraught” after the ultimate and overwhelming European Court ruling against her demands, while Mr Johnston said “common sense had prevailed.” Both of these statements are true. This poor woman desperately wants a child, and took precautions before ovarian cancer and its treatment left her infertile. My heart went out to her, seeing her on TV, but I’m also deeply disturbed at the way it’s all been reported. Modern news reports grab viewers by going for the ‘human interest’ story, and what story could be more sympathetic? Add to that that she’s so plainly distraught and sincere, while her ex-partner Howard Johnston comes across as less emotional on TV. No wonder I’ve heard him called ‘heartless’ – the narrative of television and the tabloids requires a villain, and a ‘cold, nasty man’ refusing the wishes of a ‘tragic, weeping woman’ fits the bill. But this is a tragedy for both of them, and that stereotype does her as few favours as it does him. She’s going to have to cope with this result, and every media outlet telling her ‘You must be right because you looked more upset’ will not help. Neither, I hope, will it change the law. Government by the Jeremy Kyle Show and who can produce the most visible emotion terrifies me. The law at the moment is firm, but it must be to keep a balance when two people’s rights are in conflict. Almost every legal argument about sex boils down to one person having desires and the other not wanting to fulfil them. It would be horrific if the law were suddenly to side with the person making the biggest noise and leave no freedom of choice.

The couple’s embryos were frozen in 2001; the couple split up in 2002; since 2003, Ms Evans has been fighting in the courts to use them by removing Mr Johnston’s consent. Her lawyers’ argument that he’d consented to the creation, storage and use of the embryos and shouldn’t be allowed to change his mind sounds reasonable for a moment, but hang on. Imagine that man with testicular cancer had fertilised embryos with his partner, and – because she’d previously agreed – demanded that she be implanted with their embryo and carry it to full term. No, not embryo; embryos, surely, if that imaginary couple, too, had agreed to fertilise six. Imagine him weeping, her stony-faced. I’d find it hard not to sympathise with him. But I’d never for a moment believe he should have the ‘right’ to take away her choice, and I can’t for a moment believe he’d get through the first stage of the courts, let alone end up in a higher level of European Court than I’d even heard of until today.

The law requires both partners to give consent and allows either of them – as it was made clear to both of them at the time – to withdraw consent up to the point at which an embryo is implanted for just the same reason, surely, that it makes the identical requirements for non-IVF-aided pregnancies: sex and reproduction should never be forced on an unwilling partner. When Ms Evans said:
“I am distraught at the Court’s decision. It is very hard for me to accept the embryos will be destroyed,”
she tugged at our heartstrings, but her wishes are her own, and a child takes two. She’s in a tragic situation, but even the greatest feeling can’t enforce your feelings on someone else. Mr Johnston was completely right to say:
“I feel common sense has prevailed. Of course I am sympathetic, but I wanted to choose when, if and with whom I would have a child.”
If two people married, say, with one promising the other that they would have children, but changed their mind after the marriage, could the deprived partner sue to demand unprotected sex? If this court case had gone through, I can’t see an argument against it. The BBC website quotes Anna Smajdor, a so-called ‘Researcher in medical ethics, Imperial College, London’ as saying:
“There is something deeply amiss here. Ms Evans is not allowed to have her embryos implanted without her ex’s consent, yet he – effectively – is allowed to have them destroyed them without hers.”
I feel the need for a lot more research into Ms Smajdor’s ethics before I know just how to refute her grandiose assertions. Perhaps she is against abortion in all cases? Or is she against abortion except with the express legal consent of the father? Or is she supporting an ethical double standard where only women have any reproductive rights at all? Something is amiss with the BBC not to have checked whether she’s a religious fundamentalist, a supporter of a huge extension of fathers’ rights, or a supporter of removing fathers’ rights in their entirety. Because from her statement, she could be any one of the three. There have been many arguments against abortion over the years, or in favour of restricting abortion to the consent of ‘the husband’ (it’s rarely a call from groups that would approve of a woman becoming pregnant outside marriage). If a woman decides to have an abortion when her partner desperately wants a child, that, too, is a tragedy. But, in the end, it’s the woman that has to carry the baby, and while of course it’s better if they can agree, not all of life can be happy for everyone and the final choice has to put people’s right to say no above the right of others to force a ‘yes’. Just as you can agree to have sex, but change your mind when it comes down to it, you must have the right to say no until the last possible moment about undertaking the huge emotional (and legal, and financial) responsibility of having a child. Usually biology dictates that the last moment for a man is considerably before that for a woman. When the biological processes are on hold, the decision has to be as well; biology is what gives women the veto, not moral superiority.

The law has made huge strides in the last half-century in taking control of women’s lives and bodies from church, state or husband and setting it firmly with women themselves. In particular, abortion is legal and everyone now accepts rape can occur within marriage as in any other relationship. It is staggering to suggest that these hard-won reproductive rights for women should have no equivalence for men, or that overturning them can be done without harmful consequences. A woman can choose to end her pregnancy, whatever her partner might want, because ultimately it is a choice over her body, not his. The only point at which a man has a choice is before a woman becomes pregnant. That choice should never, ever be taken away from women or from men. A woman is no longer taken to have given irrevocable consent, through marriage, to every sexual demand. Rolling that back so that, once a sexual relationship has been agreed, one partner can take advantage of the other whatever their objections seems horrific to me, whatever the circumstances and however deep the passion.

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I don't think that your point about the hypothetical man with testicular cancer is at all similar. Being forced to carry to term embryos you don't want to is a very different thing than watching someone else carry to term embryos that you don't want carried to term.

I'm not at all clear in what way it harms Mr Johnston for Ms Evans to have children that share genes with him. Presumably there is an argument that he will have a legal responsibility for the child? Otherwise - why does what he thinks matter? Surely the Liberal perspective is that he shouldn't be able to veto something that need neither harm nor affect him unless he wants it to.

I realise I must be missing something obvious here, because this is exactly the position I'd normally expect you to take. But I'm still puzzled, and I really don't think that being made pregnant against one's will is at all similar to making someone else pregnant against one's will - especially when the act of fertilisation has already happened with consent.
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