Right for abortion

ABSTRACT

This paper considers the legal position of men and women following three ways of conception; within a woman's body, outside of her body and using a surrogate mother.

The first chapter concerns a ‘natural' pregnancy, conceived by sexual intercourse, which is unwanted by one party. The rights of the man, woman and foetus are discussed in terms of the Abortion Act 1967 and Human Rights Act 1998. It is shown that a woman does not have a right to abortion on demand and must obtain the signature of two doctors to allow a legal abortion. Although she must consult a doctor she is under no obligation to consult the father and he has no means of preventing or enforcing a legal abortion.

The second chapter looks at assisted conception, when embryos are stored for later implantation. The law allows either party to withdraw their consent up until the time the embryos are implanted in a woman's womb. When one party withdraws their consent the guidelines state that the embryos must be destroyed. The party wishing to keep the embryos has applied to the Court to overrule the withdrawal of consent citing that they have a right to found a family and the embryo has a right to life under Human Rights legislation. It was found however that the law favours the person who does not wish to procreate.

The third chapter highlights the legal problems raised by the use of a surrogate mother. Disputes have arisen when the surrogate refuses to hand over the baby after birth. Cases have been decided using both biology and intent to parent.

In conclusion, it was found that the rights of each party are given different legal emphasis in respect of abortion, IVF and surrogacy and the limits of technology and biology prevent rights being made more equitable.

INTRODUCTION

‘Reproduction does seem to be a peculiarly - and visibly - female activity. It is the woman's body which carries a pregnancy, which provides the necessary warmth and nutrition to sustain the foetus, and which swells to accommodate its growth. By comparison, the man's involvement seems insignificant, amounting to nothing more than the ejaculation of a small quantity of seminal fluid'[1]

Sally Sheldon describes the biological view of conception and pregnancy and reduces the ‘father' to nothing more than a few drops of fluid, whereas the mother's whole body changes to accommodate the foetus.

The traditional role of men and women as parents has changed dramatically in the last century. A man was viewed as the provider, the head of the family and automatically the father of his wife's children. A woman's role was to provide her husband with children and take care of his home. She had no right to vote[2], own property[3] or have access to their children should the couple separate[4].

Until quite late in the twentieth century, the only method of contraception approved by the church was coitus interruptus. Condoms were available but this too placed men in control of conception, leaving women to deal with the aftermath of an unwanted pregnancy. Although abortion was available it was not legal, regulated or safe[5].

The 1960's saw the introduction of the contraceptive pill and the legal defence of medical abortion[6]. A woman gained control of her fertility and could plan a family around her career ambitions, finances and relationship status. Couples could postpone having children or decide not to have any at all.

Not everyone can conceive naturally. This may be due to health problems or being in a same sex relationship. Technological advances mean that couples can overcome many forms of infertility by the use of assisted conception. This has challenged the accepted idea that genetic and legal parents are one and the same.

This paper will discuss the rights of a man and woman when a child is conceived naturally, through sexual intercourse, by assisted conception and by the use of a surrogate mother.

The Law and Statutes governing assisted conception and abortion will be examined to ascertain if the circumstances of conception affect the rights of the parents. Relevant court cases and academic comment will illustrate how Judges have interpreted the law when couples cannot agree whether an abortion should be granted or an embryo implanted or destroyed. The use of a surrogate mother complicates the legal and socially accepted definition of a parent, as the birth mother may have no genetic connection to the child and her intention is to rescind her parental responsibilities at birth.

It conclusion, it is considered whether it is possible to make the rights of a man and a woman more equitable.

CONCEPTION WITHIN A WOMAN'S BODY

Most couples, when faced with an unplanned pregnancy, make the decision together as to whether to proceed with the pregnancy or have it terminated. The complications arise when the couple cannot agree and apply to the courts for a final decision.

This chapter will explore the legal position when one person wants to keep the pregnancy and the other wants an abortion. It is intended to discover if a man and woman have equity in law and, if not, why the law could be said to favour one party over the other.

In 2008, 195,296 legal abortions were carried out in the United Kingdom (UK). 90% were funded by the National Health Service and performed under thirteen weeks gestation. The most common reason given for women under 24 weeks pregnant to have an abortion[7] is that ‘continuance of the pregnancy would involve risk greater, than if the pregnancy was terminated, of injury to her physical or mental health'[8]. 81% of abortions were carried out for single women7. However, this does not mean that they were not in a relationship, merely that they were unmarried.

Men can, and often do, influence the decision of abortion. According to the limited research available[9], women who were undecided whether to continue the pregnancy or terminate were more likely to abort if the men were unhappy that they were pregnant and unwilling, or unable, to support a child. Men who expressed the desire to keep the child often swayed a woman towards continuing the pregnancy. However, many men were presented with a woman's decision and then asked if they agreed[10]. Pregnancy was viewed by many men as a woman's choice and they supported whatever decision the woman made.

Abortion Law in the United Kingdom

Contrary to common belief, abortion in the UK is not legal or available on demand. The Offences against the Person Act 1861[11] states that it is an offence to intentionally procure a miscarriage, either by self-administering or providing another with ‘any poison or other noxious thing&esquo; or using ‘any instrument or other means whatsoever'[12].

The Infant Life (Preservation) Act 1929[13] protects a child during birth, as it an offence to ‘destroy the life of a child capable of being born alive' unless for the purpose of‘preserving the life of the mother'[14]. If a woman has been pregnant for a period of twenty-eight weeks or more this is ‘prima facie proof that she was at that time pregnant of a child capable of being born alive'[15].

The Abortion Act 1967[16] gives doctors a defence against prosecution under the above Acts, if two doctors believe ‘in good faith' that a pregnant woman meets ‘one of the specified grounds'[17], which allows a ‘registered medical practitioner' to perform a legal abortion. The Abortion Act does not give a woman the right to reproductive autonomy but gives doctors the authority to decide if a woman meets the criteria for a legal abortion.

Grounds for a legal Abortion[18]

  • The continuance of the pregnancy would involve risk to the life of the pregnant woman greater than if the pregnancy were terminated;
  • The termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman;
  • The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman;
  • The continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of any existing child(ren) of the family of the pregnant
    woman;
  • There is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped;
    or in emergency, certified by the operating practitioner as immediately necessary:
  • To save the life of the pregnant woman; or
  • To prevent grave permanent injury to the physical or mental health of the pregnant woman.

The act provides that in relation to grounds C and D the certifying practitioner may take account of the pregnant woman's actual or reasonably foreseeable environment. The changes made to the Abortion Act 1967 by section 37 of the Human Fertilisation and Embryology Act 1990 [19] came into effect on 1 April 1991 and included a time limit of 24 weeks for abortions under statutory grounds C and D. Statutory grounds A, B and E [20] , F and G are without time limit.

According to the Royal College of Obstetricians the risks of continuing a pregnancy are always greater than the risks involved in an early legal termination[21]. Therefore, most women would satisfy Category C in the first trimester of their pregnancy and this is the most common category specified for the justification of an abortion.

Men who did not want an abortion

Some men, who do not want their ex-partners to abort their child, have gone to court to try to prevent an abortion. They were all unsuccessful as the following cases illustrate.

Paton v British Pregnancy Advisory Service[22] [23]

Mr Paton applied to the Court for an injunction to prevent the Defendants from terminating his estranged wife's pregnancy. Mrs Paton held a certificate, signed by two doctors, that her circumstances met the criteria for a legal abortion. Mr Paton stated that her actions were vindictive, spiteful and unreasonable. He wanted to have a say in the destiny of his child and relied upon Article 2(1) of the European Convention on Human Rights[24] that everyone's right to life shall be protected by law.

The Judge explained that an injunction can only be granted if a person has a legal right enforceable in law or in equity. The foetus ‘cannot in English law... have any right of its own at least until it is born and has a separate existence from the mother'[25].

The European Commission when considering the right to life of a foetus[26] decided that the ‘life' of a foetus is ultimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If Article 2 afforded protection to the foetus the ‘unborn life' of the foetus would be regarded as being of higher value than the life of the pregnant woman. This may lead to a woman being confined against her will for the duration of the pregnancy, forced to give birth or endure a caesarean without her consent. Emily Jackson states that Mr Paton's protests could be ignored ‘without violating his interest in making decisions about his body'[27] as greater protection should be given to people when their ‘bodily integrity is at stake'[28].

As the child had no right to life any action taken by Mr Paton must hinge on his rights alone. The Abortion Act makes no provision for a man to be involved in the decision as to whether a woman should have an abortion. Therefore Paton had no right to stop the abortion going ahead unless he could show that the abortion would be illegal. As the requirements for a legal abortion had already been met and signed by two doctors the judge held that the abortion could go ahead.

The Paton case established that a foetus has no rights until it is born alive and has been cited in all subsequent hearings that have attempted to prevent legal abortions from being carried out.

C v S and Another[29]

Richard Carver, a member of the Oxford University Society for the Protection of Unborn Children (SPUC), wanted to prevent his former girlfriend from having an abortion. Mr Carver's case was financed by SPUC and his Counsel, Gerard Wright QC, was a founding member of the Association of Lawyers for the Defence of the Unborn (ALDU).

He argued that at twenty-one weeks gestation, the foetus was capable of being born alive within the meaning of section 1(1) of the Offences against the Person Act. Therefore, the abortion would be illegal. He did acknowledge that the child would not be viable and would die after birth but that it satisfied the requirement of being born alive.

The World Health Organisation's definition of a live birth is
‘the complete expulsion or extraction from its mother of a product of conception, irrespective of the duration of the pregnancy, which, after such separation, breathes or shows any other evidence of life - e.g. beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles - whether or not the umbilical cord has been cut or the placenta is attached.'[30]

Carver accepted that the law gave him no right to take part in the abortion decision but claimed that the foetus should be a party to the claim as it was being threatened by a crime[31]. However, Heilbron J agreed with George Baker P in Paton that the unborn child is not a person and that any rights accorded to the foetus are held upon its subsequent live birth. Therefore the foetus did not have a legal interest in the case.

Oxford Health Authority had refused to carry out the abortion until the Court had ruled and therefore the cases were heard very quickly. As the pregnancy progressed the woman had less chance of being allowed the abortion. A High Court hearing, an appeal and the final dismissal by three Law Lords all occurred within thirty-six hours. The fear was that Carver could achieve, by using delaying tactics, what he could not achieve through the courts[32].

The woman, although legally permitted to have the abortion, subsequently changed her mind, carried the baby to term and gave it to up to Mr Carver to raise.

Issues Raised

Abortion is a Medical Decision

Prior to 1938, the only justifiable reason for an abortion was to save the life of a woman. When Dr Aleck Bourne was prosecuted, for performing an abortion on a 14 year old rape victim, his defence was that to continue the pregnancy would have affected the girl's mental and physical health[33]. Judge, Mr Justice McNaghton, compared Bourne's decision to that of a surgeon who believed it necessary to remove an appendix but later found that the appendix was normal. The surgeon would not be blamed as he believed ‘in good faith' that it was for the patient's welfare. Dr Bourne was acquitted and changed the rule that abortion was only legal to save the life of the mother. The Doctors ‘good faith' decision still applies to abortion today.

An attempt to police the decision to abort and ensure that the legislation is adhered to is the insistence on two doctors' signatures on the Abortion Certificate. No other medical procedure requires two signatures and some feel this is now an outdated requirement[34]. Objectors to the rule state that this goes against patient autonomy and creates a barrier to abortion[35]. Without the two signatures the abortion would be illegal.

The only successful case where a doctor has been prosecuted is R v Smith[36] where the second doctor, an anaesthetist, was asked for his signature while the patient was on the operating table about to undergo the procedure. It was proven that Dr Smith had not weighed the risks of continuing the pregnancy against the risk of termination. He had not taken a medical history and had not examined her or sought the opinion of a second doctor prior to the procedure. Dr Smith protested that, at the time of the abortion, the patient was in the process of miscarrying and he was ‘merely facilitation and tidying up an inevitable abortion'. He was convicted of performing an illegal abortion under S.58 of the Offences Against the Person Act 1861.

Conscientious Objection

Doctors are permitted to have a conscientious objection to participating in abortions unless the abortion is necessary to prevent ‘grave permanent injury to the physical or mental health of a pregnant woman, or to save her life'[37]. 18-24% of medical practitioners described themselves as broadly anti-abortion and do not refer women[38]

There is no legal obligation for the doctor to declare his conscientious objection but if the patient meets the criteria for a legal abortion the medical guidelines state that the doctor should‘refer the patient to a colleague at once'[39]. Conscientious objection does not exempt the doctor from giving advice or performing the preparatory steps to arrange an abortion[40]. However, it has been suggested that a doctor who objects to abortions on religious or moral grounds can slow down the process and result in later abortions taking place or indeed the woman's decision being vetoed[41].

A father's conscientious objection to abortion is not taken into account. The conscientious objection clause only relates to those directly participating in the abortion procedure[42] and not to those who may be emotionally involved.

Woman's Right to Autonomy

A woman does not have the right to demand an abortion but must seek the permission of her doctor. The fact that abortion is a medical decision avoids pro-life groups arguing that abortion on demand is a reality. Any attempt to ban abortions would fail as it is viewed as a medical procedure, decided by the woman and her doctor, and is therefore likely to avoid becoming the moral and political football that it appears to be in America[43] [44].

Patient autonomy is at the heart of UK healthcare but, in theory, a doctor can decide that the woman must continue the pregnancy. In all other medical decisions doctors must comply with instructions given by a competent adult whether those instructions appear rational or not[45] and yet legally the woman is not allowed to make the decision alone that she does not want to continue a pregnancy. In practice however, it is highly unlikely that a request for abortion will be vetoed. This leads to the conclusion that the doctor's 'permission' is a legal requirement rather than a medical opinion.

Consent

If the Abortion Act does not guarantee a woman's right to autonomy it does protect her right to consent. Nothing can be done to the foetus which does not affect the woman in whose body it is contained. As ‘every person's body is inviolate'[46] a woman must consent to an abortion and this protects her from an abortion being performed against her will.

Another view of consent is that she must also agree to the foetus remaining within her body for the pregnancy to continue. Pregnancy affects the woman both emotionally, through increased hormone levels, and physically as it alters every system in her body to accommodate the needs of the growing foetus. It can impact on her ability to continue her education or follow a desired career. If any other living creature invaded the woman's body or limited her freedom, without her consent, the law would consider this as an offence against her. If a man ‘invades' a woman's body during sexual intercourse, without her consent, it would be a crime as in law ‘no means no'.[47] A woman who requests an abortion does not consent to her body being used by the foetus. To force her to continue the pregnancy because her partner forbids an abortion overrides her status as a full member of society and deprives her of her basic human rights.

Foetal Personhood and Right to Life

Anti-abortionists insist that that the foetus is a person from conception. UK law does not recognise the foetus as a person with rights[48]. However, it does appear to give greater importance to the foetus, as it becomes viable, by not allowing abortions after 24 weeks gestation unless the woman's life is in danger or the foetus has severe disabilities. By allowing abortions at any stage prior to birth, to save a woman's life, the law acknowledges the woman's life is of more value than that of an unborn child.

In America, pregnant women have been arrested and jailed for child neglect for taking drugs and alcohol during their pregnancy[49]. In the UK, the child protection laws apply to a person and not a foetus and a woman's conduct during pregnancy is not restricted for the protection of the unborn. A child cannot sue his or her mother for compensation if her conduct, while pregnant, causes him or her harm[50].

Hewson states that there are ‘conceptual difficulties with attributing personhood to an entity which is invisible, inaccessible, physically contained in and attached to the woman, which lacks capacity and cannot interact with others at all, prior to birth'[51]. The only direct relationship it can have, according to Sherman, is with the woman inside of whom it is developing. As nothing can be done to the foetus, that does not involve something being done to the woman, the decisions taken about the foetus must be made solely by the woman[52].

When the Human Rights Act[53] came into being in 2000 many pro-life supporters felt this would give some protection to the unborn foetus as Article 2 of the Human Rights Act refers to the right to life. This has been argued by the fathers in the anti abortion cases discussed later, when it was held that human rights apply when the person is ‘already born and cannot apply to a foetus'[54].

Article 8 is the right to respect for private and family life. This is in regard to an existing family and is not for the right to create a family by the conception of a child. A woman's right to privacy and family life take precedence over any perceived rights of the foetus under Article 2.

As the foetus is not legally a person, and therefore has no rights to protect, a mother's rights will always take precedence if she decides to abort. Human rights only extend to those already born and give no protection to a foetus.

Unmarried Father's Rights and Responsibilities

Until 2003 unmarried men who fathered a child did not automatically gain parental responsibility for their child, regardless of whether they were named on the child's Birth Certificate[55]. This meant that they had no legal right to make decisions about the welfare of their child, were unable to sign medical consent forms and had no automatic right to custody if the child's mother died. After 1st December 2003[56] a man who jointly registered the birth of a child was given parental responsibility. Fathers of children born before this date had to apply for parental responsibility which required the consent of the mother. When a man disagrees about whether a child should even be born it is unlikely that he will want, or that the woman will readily agree, to the man assuming parental responsibility.

Regardless of whether a man wants the child, or the mother agrees to parental responsibility being shared, the man is required by law to support the child until the age of eighteen years[57]. The introduction of the Child Support Agency (CSA) in 1993 caused anger, disobedience and even suicide[58]. The CSA is an executive agency of the Department of Work and Pensions and is responsible for administering the system where non-resident parents are required to pay for the upbringing of their children[59]. It was a poorly thought out and complicated system which was amended in 2000 to a ‘fairer flat-rate' system which takes into account the wage of the non-resident parent[60]. The CSA was unpopular from the beginning. Its poor performance and sometimes controversial decisions[61] has led to it being taken over by the Child Maintenance and Enforcement Commission[62]. If the woman is claiming benefits and withholds the father's name she may have her benefits reduced or stopped. The financial obligation of the man ties the woman to him for eighteen years, when she may prefer not to be associated with him[63].

Child support is not a new requirement, fathers have always been expected to support their children. The earliest legislation the writer discovered, during her research, dates back to Elizabethan times and ordered that 'bastards should be supported by their putative fathers'[64]. This was prior to the availability of reliable contraception and safe abortion. The Act was in place to prevent the burden of illegitimate children being maintained by the State rather than to improve the lives of the woman and child (an accusation that has been levelled at the CSA[65]).

If a woman continues with a pregnancy, against the wishes of the father, he will assume all the financial responsibilities for that child and yet have no legal say in its future. If a man fails to maintain his child he faces maintenance payments being deducted at source by his employer, his assets can be frozen, his property sold and ultimately he can face a prison sentence[66]. The law cannot force a person to love and care for his child, at most it can only force the reluctant parent to support his child financially[67].

It could be said that it is in the best interests of society for the man to be responsible for his offspring, whether he wanted to become a father or not. He should have realised that sexual intercourse can result in a pregnancy and, if that was not what he wanted, he should have taken precautions to prevent it. However, even when he does try to avoid it, but contraception failed, he will still be held financially liable.

Contraceptive Fraud

Both the man and the woman take an equal risk of pregnancy by having unprotected sex. Contraceptives do fail and pregnancy is not the intended outcome but there are rare cases where women deliberately become pregnant knowing the man has not agreed to fatherhood. Legal paternity is decided on the basis of genetic fatherhood not a willingness to become a father.

In the United States of America (USA) men have sued for breach of contract[68], fraud[69], trespass to the person[70] and emotional distress[71], which all come under the broad heading of contraceptive fraud. None of the cases were successful. A male victim of statutory rape[72] was held financially responsible for his child although he was still a child himself. It seems very unfair that a woman can deceive a man into impregnating her and then he is held financially responsible especially when the deceit is on the man's part it has been viewed differently. A woman sued a sexual partner, as he stated that he was infertile, but she subsequently became pregnant. She was awarded the costs of the abortion, loss of wages and pain and suffering[73].

The often used argument, that if a man does not want to be a father, he should use appropriate contraceptives is a valid one but if the woman assures him that she is infertile or taking appropriate precautions to avoid pregnancy his only mistake was to believe her. Eighteen years of child support is a very expensive error in judgment.

Analysis

The biological fact that the foetus develops inside the woman's body and is totally dependent on her for its survival puts the foetus at a disadvantage in any argument justifying its right to life. Without a woman's consent the foetus cannot be preserved or destroyed[74]. Whatever is done to the foetus involves invading the woman's body. A woman's right to protect her bodily integrity allows her to decide if she will continue with the pregnancy. However, she cannot decide alone is she will have an abortion, she must obtain the approval of a doctor. It is a legal requirement to consult a doctor but she is under no obligation to consult the father[75] even if she is married to him.

It is argued that the only way for a woman to be granted an abortion is to prove that she is in some way ‘unfortunate, inadequate, unlucky or generally deserving' and that they ‘won't do it again'[76]. McDonagh states that a woman, who consents to sexual intercourse, may be partially morally responsible for becoming pregnant but it does not follow that she is legally required to consent to the condition[77]. She states that if pregnancy is seen as a risk to the woman she has a right to self-defence to stop the foetus from harming her.

The doctor may not be fully informed of the woman's personal circumstances and there is no requirement for any proof that what she says is truthful[78]. It could be said that the woman and doctor simply fit the circumstances to the requirement of the law to achieve the desired outcome.

Berer states that a more honest approach would be to allow a woman to say that she simply does not want a child at this time[79] but that would not satisfy the grounds for defence against an illegal abortion and the doctor could be prosecuted[80]. Provided the doctor is of the opinion, in good faith[81], that a woman meets the requirements for a legal abortion she will be allowed to terminate the pregnancy.

Despite objections that the two signature requirement is in conflict with a woman's autonomy it is likely to remain to ensure abortion is a medical rather than a moral or political decision. The medical opinion of a doctor appears to be a mere formality, in the first trimester of pregnancy, as almost all women in the first trimester of pregnancy, fulfil the criteria of the Abortion Act[82].

A foetus is not dependent on its father in any way once conception has occurred. The father cannot force an abortion or insist that a woman carries the foetus to term. To allow the father to dictate what happens inside a woman's body after conception would limit the woman's freedom to the point that she would just be a baby container. Human Rights support the woman's right to privacy[83] and does not acknowledge the foetus' right to life[84].

From conception to birth the foetus is the sole responsibility of its mother. Once the child is born the father becomes financially responsible, even if he does not want the child or takes no active part in the child's upbringing. This is not necessarily in the best interests of either parent or the child but a way of preventing society as a whole paying for the upkeep of fatherless children.

Stephen Hales refers to child rearing and child support as ‘future duties'[85]. He states that a woman can choose whether to accept these duties or not by electing to terminate the pregnancy. A man has no such right and, if a woman continues the pregnancy, a man will ultimately be financially responsible for the resulting child. A man does not have to be consulted at any point in the decision making process. In Hales' opinion a woman's choice to keep a child against the father's wishes is a ‘selfish unilateral decision' which takes into account only her motives and desires.

If a woman has a minimum of twelve weeks to decide if she wishes to have the child the man should be allowed the same amount of time to decide if he wants to be a father. For equality of rights, Hales suggests that a man does not have to consult a mother and she cannot veto his final decision to have a ‘social' abortion.

Hales argues that a woman's burden is only for nine months whereas a man's (financial) burden is eighteen years which is twenty-seven times longer. This appears to completely ignore the fact that the main 'burden' of childrearing usually falls to a woman. Her responsibility does not end when the child is born, unless she gives a child up for adoption, when both her and the father's responsibilities are transferred to another legal parent. If a woman has child rearing responsibility, equity can only be achieved by a man accepting financial responsibility, according to Hales.

It does not seem equitable that a man's right to decide he does not want a child can be overridden by a woman who has the opportunity to change her mind long after conception. Reproduction is a joint biological enterprise. There are two sets of human needs and interests and potentially two radically differing life plans at stake[86]. It may take two to conceive but only one person controls whether or not a baby is born.[87]

For equality, a man should be afforded a chance to decide he is not ready for fatherhood. If a woman has deceived the man into impregnating her or continues a pregnancy against his wishes it seems unjust that he should take the financial responsibility for her decision.

However, the decision to keep or abort a pregnancy must be made by the woman. If she decides she wants an abortion it is doubtful a doctor would refuse her request. If the father objects there is nothing he can do to prevent it. As the interests of the father and the foetus are effectively ignored, the law favours the woman due to biology. The foetus is within her body and she has ultimate control over its fate.

When an embryo is created outside the woman's body the next chapter illustrates that the law views the rights of the woman in a totally different way.

CONCEPTION OUTSIDE OF A WOMAN'S BODY

The first ‘test-tube baby' Louise Brown was born in Oldham in July 1978[88]. Despite protests from the Roman Catholic Church[89] most people were pleased that medical technology had created a chance for a childless couple to have a child of their own. One in seven couples experience difficulty conceiving and 1.5% of children born in the United Kingdom (UK) are conceived using in vitro fertilisation (IVF)[90].

In the thirty years since Louise's birth, techniques have improved and many couples no longer have to accept infertility as a barrier to parenthood. However, the law concerning family life had not anticipated conception by artificial means and has been slow to respond to the legal dilemmas created by medical science and the changing structure of the modern family.

This chapter explores the legal position of a mother and father following involvement in assisted conception and how it differs from the father of a child conceived ‘naturally', through sexual intercourse.

In vitro fertilisation

IVF involves harvesting a woman's eggs and fertilising them with a man's sperm before re-implanting the embryos in the woman's womb. As this is a costly exercise and uncomfortable for a woman, clinics harvest and fertilise as many eggs as possible. Clinics can only re-implant two, or occasionally three[91], embryos at one time and so it is necessary to freeze and store additional embryos for possible future use. The 'surplus' embryos can be stored for up to ten years with both parents' consent[92]. The legal difficulties arise when one 'parent' changes their mind and no longer wishes for the embryos to be stored or used. If the couple cannot agree they must resort to the Courts for a decision on the fate of the embryos.

Most infertile couples turn to fertility clinics for assistance in conceiving. Fertility clinics are licensed by the Human Fertilisation and Embryology Authority and operate under strict guidelines[93]. Men who donate sperm to a clinic are protected from the financial responsibility of fatherhood. A woman can choose to inseminate herself using sperm donated by a male friend, without consulting a clinic. However, if a man donates sperm for ‘DIY' artificial insemination the donor will be deemed the father of any resulting child regardless of any agreement arranged between himself and the woman[94]. If he donated sperm via a licensed clinic he would be protected from any future claim for child support[95].

The cases discussed in this chapter centre on informed consent and, more specifically, a person's right to withdraw that consent. The most emotive cases involve embryos that have been created and stored for future use but the ‘father' has withdrawn his consent for the embryos to be implanted in the woman's womb. The case of Natallie Evans will be discussed and the outcome of that case will be compared with the decisions taken in other IVF cases to ascertain if there is consistency in the judgments and whether changes to the laws and guidelines governing infertility treatment are necessary. The interpretation of two important phrases, ‘treatment together' and what constitutes ‘use' of the embryo have been critical in the judge's final decision.

IVF Legal Cases

Natallie Evans

Natallie Evans and her fiancé Howard Johnston visited a fertility clinic to investigate the possibility of treatment in July 2000. Tests conducted there revealed that Ms Evans had pre-cancerous tumours affecting both her ovaries. Ms Evans was informed that both her ovaries would have to be surgically removed and she would be unable to conceive children naturally. The couple were offered one cycle of in vitro fertilisation to harvest Ms Evans' eggs for use in the future. The success rate for freezing eggs was very low at the time[96] and the clinic did not have facilities for this particular procedure. They were advised that the best way forward was to fertilise the eggs with Mr Johnston's sperm and freeze the embryos. Both parties gave their consent and eleven eggs were harvested from Ms Evans and fertilised with Mr Johnston's sperm, resulting in six embryos being frozen.

Provision within the Human Fertilisation and Embryology Act 1990 was made in the event of incapacity or death[97] of either party but makes no mention of what happens in the case of separation or divorce. It is natural for a woman to want to have her partner as the father of her child and no one envisages the breakup of a relationship. However, following Ms Evans' successful surgery the couple split up and Mr Johnston wrote to the clinic withdrawing his consent for the continued storage and use of the embryos.

Ms Evans turned to the courts in an attempt to win the right to have the embryos implanted. Ms Evans was initially joined by Ms Hadley, who also wanted the right to implant embryos against her ex-partner's wishes[98]. Both failed in their applications to the UK courts[99] [100] and Ms Hadley decided not to appeal. Evans went to the European Court of Human Rights[101] to gain permission to have the embryos awarded to her for implantation. The European Court agreed with the findings of the UK courts and the embryos, which were her only possibility of having a child she would be biologically related to, were destroyed.

Legal Arguments used in the UK Court

One argument proposed was based on promissory estoppel. This is when a person makes a false statement to another who then relies on what is said to his/her disadvantage. In order to ensure justice is done a Judge can treat this statement as a promise.

Mr Johnston had assured Ms Evans, prior to the treatment, that they were not going to split up and Ms Evans relied on that promise to her detriment. Therefore, it would be unjust to allow Mr Johnston to reverse his statement. However, Judge Wall held that Mr Johnston's assurances did not amount to clear instructions as to the use of the embryos or a promise not to withdraw his consent at a later date. Judge Wall decided that Ms Evans had taken the only realistic course open to her at the time, which was not dependent on assurances from Mr Johnston. To have granted promissory estoppels would have been against the Act's policy which allows for Mr Johnston to withdraw his consent up until the time the embryos were implanted.

Ms Evans failed to prove her case in the UK courts and decided to take her case to the European Court of Human Rights (ECHR) citing Articles 2, 8, 12 and 14 of the Human Rights Act 1998.

Legal Arguments used in European Court of Human Rights

Article 2 is the Right to life and although Ms Evans acknowledged that the embryos had no legal rights she argued that the embryos should be afforded a special status to attract a ‘qualified right to life'. The European Court of Human Rights confirmed that, in the absence of any European consensus on the definition of the beginning of life, member state law applies. UK law does not recognise an unviable foetus as a person with any legal status[102] and this argument was doomed to failure.

Article 8 is the Right to respect for private life and family life and was used by Ms Evans as her main argument in court. She insisted that allowing a man's veto to be the deciding factor was disproportionate, as it did not take into account the woman's investment in, or the interests of, the embryos.

The Court decided that the right to withdraw consent could not be overruled as “the absolute nature of the rule served to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing…“entirely incommensurable” interests.”[103]

The court could not interfere with the genetic father's right to decide he did not want to be a parent, anymore than it could have forced motherhood on Ms Evans against her will. The Court decided that each person has an equal right and one party cannot override the other, despite the perceived greater emotional and physical investment by Ms Evans during the IVF procedure.

Similarly, when applying Article 12, the Right to marry and found a family, the Judge agreed with Johnston that he could withdraw his consent at any time until the embryos were ‘used' (implanted). Ms Evans had been allowed access to lawful IVF treatment under a consensual agreement between herself and Mr Johnston. The agreement had allowed for Mr Johnston to withdraw his consent at any time. However, the Court did not take into account that, by withdrawing his consent, Mr Johnston would still biologically be able to have a child, whereas Ms Evans would not. Again, it was determined that Human Rights legislation cannot be used to override the rights and freedoms of others and Ms Evans did not have a right to have a child by Mr Johnston against his will, therefore this claim failed.

Article 14 is the Right to prohibition of discrimination. Mr Johnston argued that he would not be allowed to force Ms Evans to continue a pregnancy, if she decided she did not want to be a mother, by denying her an abortion[104]. He believed that he should have the right to decide he did not want to be a father. To avoid discrimination she should not be able to force parenthood on him. This is an interesting argument, as discussed previously, Johnston would not have had the right to avoid fatherhood if Evans had indeed been pregnant. An IVF father is allowed to change his mind long after fertilisation has taken place, something a father of a child conceived through sexual intercourse cannot do.

Ms Evans felt that she was discriminated against due to her infertility. The court stated that the difference between Ms Evans and a woman who conceives naturally was that Ms Evans was not pregnant and the fertile woman was. The fact that the frozen embryos are not within the mother's body negates the need to protect of her bodily integrity. Whatever is done to the embryo can be carried out without violating her physically. Once she became pregnant Ms Evans would be treated in exactly the same way as a fertile woman with regard to her authority over the embryos. Therefore, the law was not discriminatory, it was nature that had discriminated against her. Again, it was found that her right to have a child could not override Johnston's right not to have a child.

During their deliberations two of the seven judges dissented on Article 8. They argued that Evans' right to have a child and Johnston's right not to become a father should not be resolved by ‘the blanket enforcement by the UK law of one party's withdrawal of consent'. Although they agreed that usually the withdrawal of consent should prevail there should be an exception when the other party has no other means to have a genetically related child and has no existing children and does not intend to resort to the use of a surrogate to carry the embryo to term[105]. They stated that this was gender neutral and could be applied to either the male or the female. In reality, it is more likely that the man would need to employ a surrogate than the woman so it could be argued to be biased against men.

The majority of the ECHR judges agreed with the UK courts and denied Evans' claim to the embryos and ordered their destruction by thawing.

Many difficult legal decisions have been taken using the ‘best interests' argument. It could be argued that it would be in the best interests of the woman and the embryo for the embryo to be implanted. The best interests of two should outweigh the wishes of a single individual. In the UK, the embryo has no legal right to be treated as a person and the argument reverts to one person's right against another. However, this argument has succeeded in Israel when the Israeli Supreme Court decided in 1996 that greater harm would be caused by denying a woman's chance of genetic motherhood. The estranged husband withdrew his consent for embryos to be awarded to the wife for use with a surrogate [106]. The 7-4 decision was based on 'principles of justice, morality and the paramount value of life rather than contract law'[107].

MR v TR and Others

Contract law was used in deciding a case, similar to Evans, in Dublin. A married couple consented to the retrieval of eggs from the woman which were fertilised with the man's sperm and three of the six fertilised eggs were placed in the woman's womb. The remaining three were frozen and stored in case the first implantation was unsuccessful. The woman became pregnant and gave birth to a daughter. The marriage failed and the couple separated. The woman wanted the remaining three embryos implanting in her womb, The man refused to give consent and the woman applied to the courts for their decision[108]. This case hinged on the fact that no discussion or provision had been made for what was to happen to the remaining three embryos. The husband stated that he had given consent for the storage only if the first implantation failed. The woman argued that he had consented to their implantation for a subsequent baby. The Judge viewed this case under contract law rather than any element of Human Rights.

He held that no agreement could be implied or assumed, from examining the consent documents, that the husband had agreed to anything other than the initial successful implantation. No provision had been made in the consent as to what the future plans were for the frozen embryos, merely that they were a back-up if the first implantation procedure failed. As the implantation ended in the birth of a child it could be said that the frozen embryos were surplus to requirements. It appears quite short-sighted of the clinic not to include some provision for what would happen to the embryos regardless of the couple's marital position. In the Court's view, the IVF procedure had been successful in producing a child and the remaining embryos should not be implanted in the woman against the man's wishes.

Comparing the Dublin case to that of Evans it could be said that Evans was more tragic as the Dublin woman had managed to become a mother to one child whereas Evans remained childless. When it is a person's only chance to have a biological child a case by case interpretation of the law would appear more just. Both cases involved embryos that had been conceived using the partner's sperm and both men had a genetic interest in the embryos. The following case illustrates what can happen when there is no genetic link between the ‘father' and child.

Re: R

An infertile man who wished to become a father was highlighted in Re:R[109]. The unmarried couple's attempt at donor insemination failed and it was decided that egg harvest and fertilisation by donor sperm was the best chance of the woman (D) becoming pregnant. The first implantation of two embryos was not successful. Before the second implantation took place D and her partner (B) had separated and D now had another male partner (S). She deceived the clinic into believing S was the person who had signed the consent to treatment and the embryos were implanted resulting in a pregnancy. D then confessed to the clinic that she was no longer in a relationship with B.

On the birth of the child (R) B applied for Parental Responsibility and Contact Orders. B had stated that he was willing to be the father of any child resulting from the treatment and by virtue of Section 28(3) of the HFEA Act 1990 he should have been acknowledged as such. The Judge applied Section 1(1) and (3) of the Children Act 1989[110] and allowed indirect contact but adjourned the Parental Responsibility Order. Later, Judge Hedley stated that as consent was never withdrawn by either party the treatment should be considered to have been continual[111]. The Court of Appeal decided that legal paternity was established at the time of implantation and as D and B were no longer a couple they were no longer receiving treatment ‘together'. Therefore B was not R's legal father. If the clinic insists on treatment ‘together' it should ensure that the ‘correct' men are present and have them renew their consent at the time of implantation.

It could be said that B did not in fact receive 'treatment' at all. As an infertile man whose partner's eggs were fertilised by donor sperm B's role was more supportive than active in the conception of a child. Without his genetic material, or marriage to the mother which would entitle him to be viewed as the legal father, B's willingness to be a father was his only connection to the child.

It is not enough that a man intends to be a father. If this were the case then men who donate sperm to a clinic (intending for this to result in a pregnancy) would be legal fathers whereas a man who had a ‘one night stand' and had never intended a child to result would not. Surely his willingness makes him a better candidate for being a father than a man who can fertilise eggs but has no intention of raising any resultant child. Unfortunately, D did not want B to be involved in the upbringing of her daughter and the child remained legally fatherless.

D deceived the clinic so she could receive the second, successful, implantation. Maybe, as in Evans, she felt she had no alternative as the clinic may have denied her the second treatment. However, as her new partner had as little genetic connection to the child as her previous partner it is doubtful if this would have happened.

All children of women who receive treatment alone, meaning without a man, including single women, lesbian couples and women using their husband's sperm without their consent are legally fatherless. Until 2003, this also included the posthumous use of a husband's sperm but Diane Blood's application for judicial review led to a deceased father's name being registered on a child's birth certificate[112].

Diane Blood

Diane Blood obtained her husband's sperm, without his consent, as he lay in a coma. The collection and storage of Mr Blood's sperm was unlawful[113] and yet she was eventually successful in being allowed to use it to conceive her dead husband's children.

Even though Mrs Blood's actions were unlawful and Mr Blood's willingness to create a child could not be verified, the Court looked sympathetically on her plight. This contrasts greatly with the treatment of Natallie Evans. Mr Johnston's sperm was legally collected, used to create an embryo and stored with his permission. The Judge could have absolved him from any responsibility from any future child but did not[114]. He decided it caused less harm to deny Ms Evans the chance of her own biological child than to force fatherhood on a reluctant man.

Mrs Blood argued the right to medical treatment within the European Community, to enable her to use the sperm in Belgium, as it could not be used within the UK. Further inconsistency within European law was highlighted in the case of U v W[115]. An unmarried couple received treatment by donor sperm insemination in Rome. When the woman returned to the UK following successful treatment the man ended their relationship. The woman gave birth to twins and applied for financial support from the babies' ‘father'. Section 28(3) did not apply as, although the couple had sought treatment ‘together', they had not used a UK licensed establishment. This meant that the male partner, having no marital connection to the mother or genetic relationship with the children, was not the legal father of the twins and could not be held financially responsible.

Leeds Teaching Hospital Trust v A

Usually, if a couple are married, the husband is the father of any child born to the wife during the marriage[116]. However, following a mix-up at a Leeds fertility clinic when Mr B's sperm was used to fertilise Mrs A's eggs, resulting in the birth of twins[117], it was more difficult to decide who was the legal father. Although Mr B was the biological father of the twins he was not married to the mother and therefore could not have parental responsibility[118]. Mr A, as the husband of the mother, consented to his wife's eggs being fertilised with his sperm only. As there was no legal consent for the use of Mr B's sperm Section 28(2) did not apply.

The Court stated that the legislation did not foresee a mistake being made by the clinic and there was no obvious answer. The mistake may never have come to light if Mr & Mrs A had not been white and Mr & Mrs B black and the twins of mixed race. The Court decided to award legal parentage to the biological father, acknowledging his genetic connection, but parental responsibility to Mr A, the man who would actually raise the twins. The Court felt that it was important for the twins' genetic father to be acknowledged but also appointed a ‘social' father who would have the care of the children. The advent of IVF has brought about confusion as to the importance of a genetic link between parent and child.

Issues Raised

Biological parents

An embryo needs a woman to bring it to term but is not dependent on its father in the same way. A woman who carries the child in her womb is considered to be the mother regardless of the lack of biological connection[119]. It appears that the placement of the embryo within a woman's body is the deciding factor.

Paternity, according to Spriggs[120] is open to legal interpretation. The decision in the Leeds' twin case, showed that a child could have a genetic and a social father. There are no cases where a child has two mothers. If the child is given up for adoption the birth mother rescinds her rights[121] and the adoptive mother becomes the child's only mother.

As couples receive IVF due to infertility often the father is not the biological parent. His consent to fatherhood, by having treatment together with his partner, is sufficient to make him the legal father[122]

Frozen egg, sperm or embryo

As discussed in the previous chapter, the law favours a woman concerning her rights when the embryo is inside her womb. When embryos, that are conceived outside of the womb, the man who is the partner in treatment appears to have more influence over their fate. However, a woman, like Ms Evans, may have more at stake when embryos are stored due to her guaranteed infertility. A man who is informed he will become infertile due to cancer treatment can have his sperm frozen, which can be used with any future partner. It stores well and has been used, in one instance, twenty-two years after freezing to achieve a successful pregnancy[123].

Human eggs are very fragile, with a high water content and are frequently destroyed by crystals forming during the freezing process. The success rate of pregnancy resulting from frozen eggs is only 1-10%[124]. For the highest prospect of success a woman's eggs should be fertilised and then frozen. However, this requires the use of a man's sperm, and therefore his consent, until the time of implantation.

Ms Evans could have chosen to have her eggs fertilised by donor sperm which would negate the need for the partner's consent. However, this could have precluded her from receiving treatment as the Human Fertilisation and Embryology Act[125] Section 13(5) stated at the time of the Evans' case that

‘A woman shall not be provided with treatment service unless account has been taken of the welfare of any child who may be born as a result of the treatment, (including the need of that child for a father)...'

The clinic may have decided that to opt for donor sperm was an indication that the relationship was not stable and therefore the child may be born to a single parent. This would have been expressly against Section 13(5) which was in place to prevent single women seeking infertility treatment alone. The 1990 Act infers that a nuclear family is required for a child's wellbeing[126] whereas in reality many children are successfully reared in families which do not conform to this ‘ideal'. This controversial clause was amended to state ‘supportive parenting' rather than ‘father' in 2008[127] due to alleged human rights discrimination against same sex couples who wished to seek treatment.

Consent, Treatment and Use

Consent to fertility treatment can be very complicated. Unlike abortion, it is not a decision involving just the woman and her doctor. Any partner must give consent to treatment. Donor sperm, egg, or both may be needed and possibly the use of a surrogate mother to carry the foetus to term. This may result in a child being created, through IVF, which is not biologically related to either ‘parent'. Courts have struggled to rule on the legal parentage of these children.

Informed consent can only be given if the couple are made aware of all the relevant information. The 1990 Act states that counselling must be given to any couple embarking on IVF treatment. It is difficult to determine if Ms Evans was informed of the implications of using Mr Johnston's sperm to fertilise the eggs in that Mr Johnston could withdraw his consent, at any time until the implantation of the embryos. Both parties must consent to their continued storage and when conflict arises the default option for frozen embryos is destruction[128] meaning that Ms Evans would never be able to have her own genetically related child.

Sally Sheldon states that the information was given to the couple and all the ‘counselling' and paperwork completed within ninety minutes of Ms Evans being informed she would lose her ovaries and never be able to conceive naturally[129]. To receive such shocking and unexpected news and then be required to make a considered judgment hardly conforms to the HFEA's code of practice which requires couples to have time to reflect before written consent is obtained[130]. It is unclear whether the couple were counselled separately or together. Mr Johnston may have felt under pressure to lessen the distress to Ms Evans by consenting, knowing that he could change his mind at a later stage.

If consent was viewed as consent to parenthood, a man could withdraw his consent to the financial and emotional responsibility of fatherhood but still allow the embryos to be implanted. The 2008 Act[131] enables a man to withdraw his consent to being considered the legal father by converting his involvement to that of a donor. This allows the embryos to be implanted without involving the man in the child's future. Johnston's argument was not that he refused the financial responsibility but that he did not want to father a child he would be unable to give a full and proper paternal role. Ms Evans' wish to play a full and proper maternal role appears to have been ignored by Judge Wall.

Judge Wall concluded that consent to treatment meant up to the moment of implantation[132]. He stated that ‘the purpose of treatment is the creation of a pregnancy.... it is at that moment that one looks to see if the couple are being treated together.'[133] Ms Evans and Mr Johnston had received treatment ‘together' as their signed consent stated ‘for treatment of myself with a named partner'[134]. This does not necessarily imply they have to be in a relationship but that they are both united in their desire for treatment. When the relationship ended Mr Johnston's desire for treatment ceased and the clinic could not allow Ms Evans to use the embryos for her treatment alone.

After implantation the clinic would have had to accept that Ms Evans would be a single parent as their ‘duty' to ensure a father for the child only applies up until the implantation procedure. Fertility clinic staff are not trained to vet the suitability of parents. People without fertility problems are not asked to prove they will be fit parents before conceiving a child[135]. If a surgeon was asked to perform a procedure to enable a couple to conceive naturally he would not be required to consider the welfare of any resulting child first. The idea that clinics could or should decide who will be a good parent is very difficult to enforce. If the clinic treats a couple who, at some point in the future, abuse the child who would be sued and by whom?

Having treatment together provides for joint autonomy rather than an individual autonomy. One person's right to exercise reproductive autonomy, by withdrawing consent, must, by its very nature, be at the expense of the other party. The need for both parties to consent to the storage and use of embryos gives the appearance of equal rights but the embryos can be destroyed with the withdrawal of the consent of only one. The person wanting to become a parent needs the consent of the other party which, in the case of a dispute, means that they are at a distinct disadvantage.

By allowing Ms Evans the right to implant the embryos it would override Mr Johnston's freedom to avoid being forced into parenthood. If Mr Johnston had decided he did not want to be a father after the embryos had been implanted in Ms Evans it would have been Ms Evans' decision entirely as to whether to continue with the pregnancy. If an embryo had been conceived in vivo, but removed later for genetic diagnosis or implantation into a surrogate's womb, only Ms Evans' consent would be required.[136] Therefore, it is the fact that the embryo is outside of the woman's body that limits her authority over it. She cannot claim she has more of an investment in the embryo despite the fact that removing a woman's eggs is a far more invasive procedure than producing sperm from a man.

In the writer's opinion, enforced fatherhood on Johnston cannot be equated to enforced motherhood for a woman. Fatherhood for Johnston would not involve any bodily contact. His contribution to ‘treatment' ends with his donation of sperm and does not involve any invasion of his bodily integrity. However, to implant embryos in a woman's womb, without her consent, followed by a coerced nine month pregnancy and childbirth or a forced caesarean would be a criminal act[137].

The fact that the Court's decision resulted in one party's ‘victory' over the other indicates to the writer that the right not to become a parent outweighs the right to a family life.

Analysis

Embryos, legally, have no status as a person[138] and cannot be viewed as property[139]. The legal certainty that a pregnant woman has control of the foetus, as it is inside her body, does not apply to embryos held outside of the womb[140]. Protecting the bodily integrity of the woman is not an issue. The embryo has no rights as a person and yet it seems distasteful for embryos to be viewed as property, due to their potential for human life[141]. A decision to award embryos to a woman, as part of a divorce settlement, using property law, was overturned by a higher court in the United States[142] who stated that no one party could have sole ownership of the embryos that had been created together.

The father of an embryo conceived ‘naturally' through sexual intercourse has no rights over the pregnancy once conception has occurred[143], due to the embryo being within its mother. If the embryo is in a fertility clinic the cases discussed above show that, when disagreement occurs, the law will protect the right of the person who does not want to be a parent. Although the right to family life is protected under the Human Rights Act[144] it is not a right enforceable against another's wishes. If a man attempted to force a woman to have embryos implanted in her womb, against her wishes, no court would ever uphold such a request.

If the man's participation in treatment is confined to donating his sperm and the embryos can continue to exist without his further involvement, it could be said that the need for his consent should end at fertilisation. When pregnancy results from any sexual contact a man's sperm is not considered his ‘property'. Once it has left his body he has no rights over it.[145]

However, in a recent case involving frozen sperm, which was destroyed by a storage facility, it was ruled that a man does indeed own his donated sperm[146]. Despite defence arguments that sperm could be treated as discarded toenails or hair, the Court found that the men had suffered a recoverable loss. It would appear that a man has control over his sperm until it is ‘used' within the body of a woman, either by fertilisation during sexual intercourse or the implantation of an embryo.

The law appears to give equal rights over frozen embryos, as neither party ‘owns' them and both can withdraw their consent to use at any time. However, the law actually favours the person who does not wish to be a parent. The consent of both parties is required for continued storage and use of the embryos but the withdrawal of only one person's consent requires the clinics to destroy them[147]. This is unlikely to alter, as legislation protects the rights of both parties to change their minds and states that neither can have parenthood forced upon them against their will. The embryo has no legal right to life and it has no ‘special status' affording it particular rights while it is in storage[148].

The law does not take into consideration the more limited options for, or the greater involvement in, infertility treatment for a woman. When technology for freezing unfertilised eggs improves a woman will have a more equal opportunity to extend her fertility without needing the consent of a partner.

The removal of the ‘need for a father' clause in the HFE Act[149] may lead clinics to encourage women to fertilise some of her harvested eggs with donor sperm, as an insurance policy against the breakup of a relationship. Until that time the clinics must give adequate counselling[150] and ensure that the woman is fully aware of the risk that she is taking when she places all her eggs in one, easily withdrawn, basket.

CONCEPTION BY A SURROGATE MOTHER

A surrogate mother is ‘a woman who carries a child in pursuance of an arrangement: (i) made before she began carrying the child; and (ii) made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercised (so far as is practicable) by, another person or persons'[151]. The couple who intend to raise the child are known as ‘the commissioning couple'. In the UK there are estimated to be fifty to eighty births a year by surrogate mothers[152] of which approximately half are friends, sisters or sister-in-laws of the commissioning couple[153].

Conception of a child can be achieved by inseminating the surrogate with the intended father's sperm (straight, traditional or partial surrogacy) or by placing a fertilised embryo into the surrogate's womb (host or full surrogacy).[154] The first method is very difficult to monitor or control as it can be achieved ‘at home' without the involvement of medical staff or clinics. The second method is carried out at infertility clinics and is now governed by the Human Fertilisation and Embryology Act[155]. However, at the time of the first reported surrogacy case in the UK[156] there were no specific rules or guidelines which addressed the legal and ethical dilemmas that very quickly became apparent.

As discussed in a previous chapter, the law recognises the woman who has carried a foetus within her womb and given birth to a baby, to be the legal mother[157]. In the case of surrogacy the mother's intention is to give the child away to the couple who commissioned its birth. When the mother is in agreement, the transfer of parental responsibility should be legally straight forward. However, legal parentage is not always obvious and the Courts have decided cases by both biology and intent.

This chapter considers the legal position of parents following the use of a surrogate mother. Occasionally, the surrogate chooses not to give up the child after its birth but on other occasions it is the law concerning legal parenthood which creates confusion and uncertainty as to who, if anyone, is considered to be the parent.

Regulation of Surrogacy

There are two major reports concerning surrogacy. The first, The Warnock Report, published in 1984, recommended regulations to discourage surrogacy arrangements and decided that to agree to licensing agencies would only encourage surrogacy. Thirteen years later, the Brazier Report wanted surrogacy agencies to be regulated and controlled by a code of practice and regulated by the Department of Health. This recommendation was not adopted.

The HFEA does not regulate surrogacy[158] and is only concerned with cases involving stored gametes when fertilised embryos are placed within a surrogate's womb. There are no regulations concerning the use of fresh sperm which enables insemination to be conducted outside of a licensed clinic[159].

Warnock Report

The Warnock Committee in their report of July 1984 suggested that the Government should address the potential problems surrounding surrogacy. The committee felt that any payment made to the mother degraded the child as it had effectively been bought.[160] It was already illegal to receive any payment in adoption arrangements[161] under the Adoption Act 1976[162].

Where surrogacy was voluntary, meaning it did not involve payment in any form, no accusation of exploitation could be made[163]. This referred to a woman having a child for her sister or other close relative or friend. This was felt to be altruistic and less offensive than a commercial arrangement between strangers.

The possibility of licensed agencies for surrogacy was dismissed as this may have encouraged an increase in surrogacy arrangements. The committee recommended legislation to outlaw the creation or operation of agencies whose purpose was to recruit women as surrogates or to make arrangements for couples wishing to utilise the services of a surrogate[164]. It was felt that private individuals should not be liable for criminal prosecution as this would result in a child being born to a mother ‘tainted with criminality'[165]. However, any professional person who knowingly assisted in the establishment of a surrogate mother should be liable to prosecution.

Regardless of any agreement between the commissioning couple and the surrogate, the committee stated that the mother had a ‘more intimate and personal relationship' with the baby than the sperm donor, and she should not be forced to give up her child if she did not want to[166]. Therefore, the report concluded that it should be provided, by statute, that all surrogacy arrangements contracts are unenforceable[167].

Following the outcry after the birth of Baby Cotton, discussed later, Parliament rushed through the Surrogacy Arrangement Act.

Surrogacy Arrangement Act 1985

It is not an offence to enter into a surrogacy arrangement but the agreement is not enforceable.[168] This means that if a surrogate does not give up the baby to the commissioning couple they cannot sue her. It also denies the surrogate any right to sue the couple if she does not receive the agreed payment or they refuse to take the baby after birth.

Section 2 (1) of the Act attempted to outlaw any form of commercial surrogacy by making it an offence to initiate, negotiate or make surrogacy arrangements, on a commercial basis. However, it is not an offence for an individual man or woman to enter into negotiations, initiate and make surrogacy arrangements on their own behalf.

Section 3 states that it is an offence for a person to advertise their willingness to enter into a surrogacy arrangement. This also applies to the individual either advertising for, or willingness to be, a surrogate mother. If a newspaper or periodical publishes such an advertisement the editor or publisher is guilty of an offence[169].

Human Fertilisation and Embryology Authority

Section 30 of the Human Fertilisation and Embryology Act 1990 came into force in November 1994. This avoids couples, who have undergone surrogacy, having to adopt their own genetic children. It allows a court to make a parental order for a child to be treated as the child of a marriage if another woman has carried the child as the result of ‘placing in her of an embryo or sperm and eggs or her artificial insemination'[170] or ‘the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo'[171].

This only applies if the commissioning couple apply for the order within six months of the child's birth[172] and the child's home is with the couple[173] within the UK[174]. The surrogate mother and any man who is considered the father, by virtue of s.28 of the Act, must agree unconditionally to the making of the order. This differs from adoption as their consent cannot be overridden on the grounds that it is being unreasonably withheld[175]. However, the surrogate cannot give her consent earlier than six weeks after the birth of the child.

The Court must also be satisfied that no money has been received by anyone in relation to the surrogacy agreement. Although reasonable expenses are permitted to be paid to the surrogate[176] there are no guidelines as to what constitutes ‘reasonable' and it is left up to the Judge's discretion[177]. This could have been clarified in the 2008 Act which chose instead to concentrate on extending Parental Orders to same sex and unmarried couples[178].

The Brazier Report

A committee, chaired by Margaret Brazier, was charged with considering whether payments to surrogates should be allowed, whether agencies should be regulated and to advise if existing legislation, the Surrogacy Arrangement Act and the HFE Act, should be reformed.

The report recommended the repeal of the Surrogacy Arrangement Act 1985 and S.30 of the HFE Act 1990 and their replacement with a new surrogacy act. This new act would prohibit commercial surrogacy and define and limit the lawful payment which could be made to surrogate mothers[179]. Ideally Brazier would have liked surrogacy to be treated like blood and organ donation ‘a fully informed and free act of giving'[180]. The fact that few women could afford to undertake surrogacy without a payment for expenses was viewed as not necessarily a bad thing.

The registration of non-profit making agencies with the Department of Health[181], who could report statistics and ensure agencies operated under clear guidelines[182] was seen as the most appropriate way to govern surrogacy arrangements.

It was recommended that Parental Orders should only be made by the High Court and Judges should be allowed to order DNA tests. The Guardian ad litem should be able to check criminal records of all the involved parties to ensure the safety of the child[183].

To date, none of the Brazier Report recommendations have been adopted. This appears to have been a missed opportunity to clarify the rules of expense payments and undertake a detailed survey of surrogacy arrangements and their outcomes. Although applying to the High Court for parental orders appears a little extreme the investigation of surrogates and commissioning couples prior to conception can only be in the child's best interests.

Without specific regulations to govern surrogacy Judges have interpreted the law on a case by case basis as the following cases illustrate.

UK Surrogacy Cases

Baby Cotton

In 1984 an English woman, Kim Cotton, agreed to act as a surrogate mother for a couple who were not UK residents. The wife was unable to have children due to a congenital defect. Mrs Cotton was inseminated at home by a nurse, with the man's sperm and she gave birth to a daughter on 4th January 1985. Mrs Cotton was paid £6,500, through an American agency and £15,000 when she sold her story to a newspaper, and became the UK's first ‘commercial' surrogate mother.

The London Borough of Barnet applied for a place of safety order for Baby Cotton on the day she was born[184] and she remained in hospital, cared for by nurses. On 8th January the father applied to the Family Division of the High Court of Justice for her to be made a ward of Court. At the High Court hearing, on 11th January, Judge Latey gave care and control to the baby's natural father and his wife and they were given permission to leave the UK with the baby[185]. The Judge stated that the main concern of the Court was the welfare of the baby, not how she had arrived. The Judge stated that the couple were warm, caring, sensible people who were able to give the child a good upbringing. As the genetic mother did not ask for the baby she would be best placed with her genetic father and his wife.

This judgment achieved exactly what all parties wanted and the commissioning couple returned home with their child and Mrs Cotton never heard from them, or their daughter, again.

Although this case was not as a result of a dispute between the commissioning couple and the surrogate it was the first to alert the public to the complicated area of surrogacy. Many people were appalled at the idea that a woman would ‘sell' her child but others felt that it was an act of kindness to help an infertile couple to have a child. Mrs Cotton stated later that she had been very naive regarding the controversy this would cause and admitted that she had been very tempted by the money which enabled her to provide a better standard of living to her existing children[186].

Mrs Cotton went on to carry twins for another couple but did not accept any money for doing so. She founded the non-profit making group, Childlessness Overcome Through Surrogacy (COTS) in 1988, which is an information and support group which does not initiate, negotiate, commission or facilitate surrogacy arrangements and is therefore acting within the law[187].

Not all cases have been dealt with in such a satisfactory manner. In the following case the Judges make very apparent their personal feelings towards surrogacy arrangements.

A v C[188]

This case was heard at the Court of Appeal in June 1978 but was not reported until 1985. It involved an unmarried couple who both desired that the man have his own biological child before the couple married. The woman had her own children but was unable to bear any more. The couple paid a prostitute to act as an agent to find a suitable surrogate mother. The surrogate became pregnant by artificial insemination but refused to give up the child after he was born. The father applied for custody but was advised to withdraw the application as the judge stated that ‘he would not contemplate giving care and control to a father who acted in a most selfish, irresponsible and obsessive manner'[189].

The father applied for access to the child which the mother opposed with support from the Official Solicitor acting as guardian ad litem for the child. The Judge decided that the best interests of the child was to have contact with his father and granted access. The mother appealed.

The appeal was allowed as there was no bond between the father and child except ‘a mere biological one'[190] and no relationship between the father and the mother except ‘a sordid commercial bargain'[191]. It was directed that none of the parties should disclose to the child or anyone else, without the leave of the Court, the circumstances of his conception or birth as this would be 'damaging to the child'[192] As the father was never likely to be granted care of the child Ormrod LJ asked ‘what is the good of keeping this wholly artificial, painful tie going?'[193]. In his view, the continued contact between the father and child would handicap the mother's position and therefore handicap the child by ‘reviving this sordid story'[194] weekly or monthly as the case may be. He went on to say that this was a ‘wholly artificial situation ... which should never have happened and which no responsible adult should ever have allowed to happen'[195].

Cumming-Bruce LJ in agreeing with Ormrod stated that the mother must not be subject to a constant reminder of the ‘baby-farming operation of a wholly distasteful and lamentable kind'[196] and that there was a real risk that the father would seize her child.

Stamp LJ stated that the child at the centre of ‘this ugly little drama'[197] would be best served by not having his relationship with his mother disturbed in the future by the father.

Reading this judgment, thirty years after the event, it is disturbing to read that the arrangement was viewed as ‘sordid' and ‘ugly' and the father described as ‘obsessive' for wanting a biological child of his own. The surrogate was portrayed as a young woman pressurised by an older, selfish, man and the best solution was deemed to be to rid her of his presence so she could marry and have a normal family. It seems that the method of the child's conception influenced the Judges into deciding that the father could have no good effect on his son's life. It was better for the child to be illegitimate than to be informed of his distasteful beginning.

When couples separate and there are children of the family it is usual, unless there are issues concerning the child's safety, to allow both parents access to the child. Following surrogacy, when the parents are both genetically connected to the child, but have never had a relationship together, this arrangement may seem legally logical but it cannot always be said to be in the best interests of the child as this next case illustrates.

Foreign Surrogacy

In the Matter of Baby M - New Jersey USA

Baby M was born following the insemination of a woman by the commissioning father's sperm. On her birth the surrogate refused to give up her genetic child and left New Jersey to live in Florida. She threatened to kill herself and the child if the father pursued the case. The Court eventually decided that the surrogacy contract was not enforceable but considered the best interests of the child. It was decided that the father could offer her a more stable emotional and financial environment. As public policy provided for equal status for mothers and father and retaining children with their natural parents the Court awarded custody to the father but with unsupervised, uninterrupted, liberal visitation by the mother [198].

Although the judgment applied the law correctly, by allowing both genetic parents access to their child, it does not seem to be a satisfactory outcome for the child. The mother and her family called the child Sara but the father and his family called the child Melissa. The Court referred to her by the name given to her by her father but there is no mention in the proceedings that ordered her mother refer to her by that name.

The issue of surrogacy is more complicated in America as different states have different laws and attitudes towards surrogacy arrangements. When a couple use a surrogate from another country the legal position is further complicated by differences in law from country to country.

X and Y (Foreign Surrogacy)[199]

A married couple from the UK entered into a surrogacy agreement with a married woman from the Ukraine. Donor eggs were fertilised by the commissioning father's sperm and twins were born, X and Y. Under Ukraine law the commissioning couple were the children's legal parents and were registered as such on the birth certificates. This meant that the children had no right to live or be considered citizens of the Ukraine.

However, English Law did not recognise the commissioning couple as the legal parents and the children had no rights to enter the UK. This left the children legal orphans and effectively stateless.

Despite the fact that the commissioning father was the biological father, the surrogate was married and therefore her husband was deemed to be the legal father in English Law[200]. S.28 was in place to protect a husband whose child was born following fertilisation by donor sperm and therefore, in surrogacy, it treats the commissioning father as a sperm donor. Had the surrogate been unmarried, the commissioning father would have been treated as the biological father and the children would have been entitled to enter the UK.

DNA tests proved that the commissioning father was the biological father and the children were eventually given discretionary leave to enter the UK ‘outside the rules' so that a parental order could be applied for. Without this permission the children would have been accommodated in a Ukrainian State orphanage[201]. The Judge decided that the welfare of the children would be best served by the granting of a parental order to the commissioning couple[202].

Acknowledging the difficulty in deciding the issues, and the likelihood that other couples may pursue foreign surrogacy, the Judge stated that this case ‘may provide grounds for cautious reflection'[203] and recommended that ‘these issues merit the widest public debate'[204]. However, before debate can be initialised the public must be made aware of what the legal problems actually are. Government concern seems to centre on commercial surrogacy being discouraged and the writer feels that many people are unaware of the difficult legal problems surrogacy raises.

Issues Raised

Who are the Parents?

Men and women are treated differently in the law regarding their intention to become a parent. Infertile men who undergo IVF and agree to their partner being inseminated with donor sperm will still be considered the father of any resulting child[205]. This is because they are being treated together with their partner with the intention of him becoming a father. If a surrogate is employed because a woman cannot carry a child to term, the woman's intention to become a mother is not sufficient for her to be recognised as the mother.

The woman who gives birth to the baby is its legal mother[206] in the UK, regardless of whether there is a biological link or not. It is her name that will be registered as the mother on the birth certificate. She can relinquish that right by agreeing to adoption or the issuing of a parental order. Otherwise, the child will legally always be hers.

The certainty that the gestational mother is always the mother is unambiguous. However, the case of paternity for a child following surrogacy is far more complex. There are five factors which influence who is the legal father[207]:

  • If the surrogate is married, her husband is the father of the child.
  • If she has a partner who consented to her ‘treatment' he will be the legal father.
  • If the surrogate is single and the commissioning father's sperm has been used to inseminate in a place other than a licensed clinic, the commissioning father will be the legal father.
  • If a surrogate is single and inseminated in a licensed clinic the child is legally fatherless.

It would appear that the most satisfactory surrogate for a couple to employ would be a single woman whose egg(s) should be fertilised by the commissioning father's sperm. This should lead to the decision that the commissioning father is the biological father and, with the surrogate's consent, he should be granted a parental order.

Parental Orders and Adoption

As the commissioning father will only occasionally be the child's legal father, the commissioning couple must apply for a parental order under section 30 of the HFE Act, or apply to adopt, before they can be considered the legal parents of the child. When the surrogate does not want the child, unless the commissioning parents prove to be woefully inadequate, it would rarely be in the child's best interests for the parental order to be refused and the child taken into care[208].

One factor in granting Parental Orders is where the child has lived since birth whether this be the commissioning couple or the surrogate mother. If a child has been considered the child of the family it is not in his best interests to be removed and given to a biological parent[209]. If a child has established a relationship with its birth mother it should not be given to its father just because he is financially better placed to offer a higher standard of living[210]. However, when it was clear that the surrogate had deceived the commissioning parents and had never intended to hand over the child, one judgment was made for the natural father despite him having had no physical contact with the child since birth[211].

For a parental order to be granted the birth mother must give her consent. When the birth mother refuses, the only other option open to the commissioning couple is to apply to adopt the child. If a commissioning couple can prove genetic or residential link adoption hearings can decide that the mother is unreasonably withholding her consent[212]. One difficulty in applying for adoption may be the payment of ‘expenses' to the surrogate as it is illegal to receive any form of payment with respect to adoption[213]. However, such payments have been allowed when the best interests of the child are that the adoption should proceed[214].

Analysis

IVF separates sex from reproduction but surrogacy separates motherhood from pregnancy. Van den Akker compares it to adoption, in that it allows a woman to become a mother and create a family. Also like adoption, it involves a third person; the woman who gave birth to the child[215]. Unlike adoption, one or both of the commissioning couple may have a genetic link with the baby and the birth mother may not.

According to Spar[216] the bond between a surrogate mother and commissioned child would theoretically be weaker if the birth mother had no biological link to the child she carried. This would give a commissioning couple, who had genetic links to the child, a ‘stronger claim'[217]. However, in UK law, the woman who gives birth will always be the mother[218] even when donor eggs are used to conceive. The act of giving birth entitles the woman to be considered the legal mother, regardless of the fact that the commissioning couple are the genetic parents of the child.

Surrogacy is not illegal but any agreements are unenforceable by law. This prevents a mother being forced to give up her child. It also places the commissioning couple in a very precarious position as they have no legal rights over the child without the mother's consent. Any payment for expenses which is made to the surrogate is neither enforceable nor refundable.

Parental orders have been extended to include same sex and unmarried couples [219] but it is interesting to note that they are only extended to couples, not individuals. So it would appear that if the commissioning couple's relationship breaks down, or one of them dies, prior to the order being granted, the birth mother would be the parent regardless of her intention not to raise the child. The child would then either remain with the mother or be placed for adoption.

If the commissioning couple reject the child, possibly due to the child being born with a disability, the surrogate mother has prima facie legal responsibility for a child she does not want. There is no legal requirement for the commissioning couple to take responsibility for a child whose existence they brought about. According to Strathern, the arrangement is for the surrogate to bear a child for the commissioning couple not for the commissioning couple to rear the child of the surrogate[220].

The true number of surrogacy arrangements is unknown as there is no agency to collate data. The Government seems reluctant to encourage surrogacy arrangements by regulating them. The lack of regulation, of partial surrogacy in particular, results in an absence of standard procedures for screening both surrogates and commissioning couples[221]. There are no recognised experts to offer legal advice or ensure that sperm is infection free.

The Government's main concern has been to prevent commercial surrogacy. Sandel agrees that commercial surrogacy treats ‘children as commodities and degrades them as instruments of profit rather than cherishing them as persons worthy of love and care'[222]. This is similar to the Judges' stance in A v C[223] when the method of a child's birth outweighed any consideration that the commissioning couple wanted to love and cherish a child.

Surrogate births are quite rare and therefore disputes are very infrequent. The law which protects the sperm donor and infertile husband in fertility treatment[224] is still applied when a commissioning father provides the sperm. Biological fatherhood is easily proven with DNA tests but legal fatherhood becomes complicated if the surrogate is married. If her husband has agreed to her ‘treatment' he will be considered the father[225]. It is irrelevant that he may have only consented on the basis that someone else would care for the child.

If the surrogate and her husband/partner consent to the parental order, the child is genetically related to one of the commissioning couple and the child has been living with them, the transfer of legal parentage is the simplest way for the commissioning couple to acquire legal parenthood[226]. However, when disputes arise the surrogate will usually be successful in her bid to keep the child as she cannot be forced to relinquish her parental responsibility unless there is strong evidence that this is not in the best interest of the child. The act of giving birth allows her automatic rights over the child regardless of the lack of genetic connection. The commissioning father has fewer rights, even when he is the genetic father, due to a lack of relationship with the surrogate. The commissioning mother has no automatic right over the child even if her eggs were used to conceive. The fact that she did not give birth precludes her from being considered the legal mother.

Surrogacy appears to be a wonderful gift from one woman to an infertile couple. However, it is dependent on the surrogate acting in accordance with an unenforceable agreement, which was probably entered into without professional advice. She must trust the commissioning couple to pay her agreed expenses and take the child, regardless of its health or disability. According to COTS too much is left to trust.[227] The commissioning couple have no automatic right to the child and must apply for a parental order, which is dependent on the surrogate's consent. Without consent the only option is to apply for adoption which outlaws any form of payment to a ‘natural' parent[228]. If the surrogate is resident in another country, the laws of that country may lead to the child to be legally without parents or homeland[229].

The best interests of the child and what constitutes acceptable payment of expenses have been decided on a case by case basis. Regulations that are in place do not appear to address the problems of surrogacy directly but are adaptations of adoption law and IVF treatment guidelines. As surrogacy is rare, it does not warrant an agency in its own right but the writer feels that as technology progresses and family structures alter, the incidence of surrogacy will grow and must eventually be addressed to protect all the parties concerned.

CONCLUSION

This paper has investigated the rights of a man and woman in the three separate areas of abortion, IVF and surrogacy. Below is discussed whether these rights could, or should, be changed to allow for more equity.

A woman who wishes to terminate an unwanted pregnancy has the freedom to do so, providing she has the agreement of two doctors. It has been shown in this paper that a man cannot prevent, or insist on, a woman having an abortion. The preservation of bodily integrity is paramount according to Deech[230]. The embryo is within a woman's body and nothing can be done to it which does not directly affect the woman. Her consent is required to either keep or terminate the pregnancy.

In considering whether the father should have any right to influence the decision to abort or not, it could be viewed in the light of his responsibilities once a child is born. If a woman continues the pregnancy, Young found that ‘virtually no circumstance, however bizarre or outrageous, can mitigate the biological father's liability for child support'[231].

Sheldon states that a woman's decision not to abort, when a man wishes otherwise, should place the burden of support on the woman[232]. She states that single motherhood is not a form of deviance, in need of correction by binding women and children to a male breadwinner[233]. She suggests that a man should have the right to decide whether to recognize a child ‘at some point after conception', thus mirroring a woman's right[234]. She does not say at what point but, to mirror a woman's right, this may be equivalent to the time limit for abortion.

If men were to be given the right to make abortion decisions, a woman would lose all rights over her body. If he wanted to keep the pregnancy she would be compelled to submit herself, against her will, to the wishes of her partner[235]. This would mean that she was no longer a person but a carrier of his baby. The Human Rights Act protects the right of everyone to enjoy privacy[236], liberty[237] and freedom from slavery[238] and inhuman treatment[239]. Enforcing a pregnancy or an abortion, on a woman against her will, denies her basic human rights. If a man decided he wanted the pregnancy terminated any doctor who carried out the procedure would be breaking the law. All medical procedures require the person's consent, without it the doctor would be guilty of assault. He could not, in good faith, sign a certificate stating that the woman met the criteria for a medical abortion when she had not consented.

As there is no male equivalent to gestation[240] unless technology can remove the embryo's need for a womb it will remain the sole responsibility of a woman to decide whether to keep or terminate her pregnancy. To allow a man equal or sole rights over the embryo will never be sanctioned by law due to the biological fact that an embryo resides within, and is dependent upon, a woman.

As shown above, there is no case for the father to have any right over the decision to abort or not. However, there are some arguments that, as the mother has sole discretion, the father should have some right to abdicate responsibility for the child if he is not party to the decision.

When the embryo is outside of a woman's body, the Human Fertilisation and Embryology Act 1990's aim is to treat both parties, undergoing fertility treatment, equally. Annett points out that this however does not mirror nature[241]. The illusion of equal rights over the embryo is only effective when both parties are in agreement. When one party withdraws their consent ‘the other loses control over their genetic material'[242].

Mason suggests that it is logical to ‘vest the ultimate disposal of an embryo in the person for whom it was intended: the woman who wants to carry it[243]. This would support Ms Evans' argument that her rights to reproduce should outweigh those of Mr Johnston's not to reproduce. This infers that men have less interest in what happens to their gametes[244]. Harris suggest that men leave their gametes ‘in all sorts of places, some of which may result in the creation of life' and that they do so ‘without counseling, formal consent and time for reflection.[245] However, this was said in the context of conception through sexual intercourse not by IVF.

Conception through IVF is a considered decision, whereas conception though sexual intercourse can be an undesirable side effect of contraception failure, deceit or unprotected sex. If intention was the only factor to be considered, it would seem that a man having IVF treatment should be given less opportunity to avoid fatherhood than a man who is a victim of circumstance. IVF treatment is a long and expensive process and the couple should receive adequate counseling on their rights and responsibilities. There is ample opportunity for the couple to consider what would happen if they split up and make provisions accordingly. However, in practice, a couple does not usually intend to break up and may find this hard to contemplate. Annett states that clear enforceable written agreements, specifying what should happen to stored embryos if a relationship breaks down, would avoid the necessity of court action[246]. At present, such agreements are not enforceable in the UK and the default position, when one party withdraws their consent, is destruction of the embryos.

If a woman was given complete rights over the stored embryo, as she would if they were within her body, a man would have no rights at all. However, the arguments used for a woman's rights over an embryo, in abortion cases, cannot be used when the embryo is outside of her body. Her bodily integrity and health are not at issue. It could be argued that her emotional wellbeing may be affected especially if, like Ms Evans, it is her only opportunity for her to have her own biological child.

If a man was given sole rights over the stored embryo he would be limited as to what he could do with them. The dissenting Judges in Evans suggested that whoever wanted to ‘use' the embryos should be awarded them provided they did not ‘intend to have recourse to a surrogate mother'[247]. As a man cannot carry a baby to term this is not the ‘neutral' decision the Judges proposed[248].

If a man was allowed to use the services of a surrogate, he would then have the same rights, or lack of them, as a man in an abortion case. The surrogate would be pregnant and even if there was no genetic link between her and the embryo, she would be the legal mother[249]. This would give her the freedom to decide to terminate the pregnancy, keep the baby once it was born, or give the baby to the man as per her original agreement.

The above demonstrates that, in the case of IVF, equity of rights can only be the negative one of veto. To have true equality, a method of gestating the embryo, independently of a woman, would be necessary.

The third area considered is that of surrogacy. This combines many of the issues considered above as well as introducing the rights of a third party.

When a couple uses a surrogate to carry the embryo to term, the commissioning mother has no rights over the embryo, even if she supplied the egg, which was implanted in the surrogate. The commissioning mother has, at best, only a contractual right[250] but, as surrogacy agreements are not enforceable in the UK, in reality she has no rights at all.[251]. The genetic link does not carry the legal recognition that is given to a genetic or even an intentional father.

If the surrogate's egg is fertilized with the commissioning father's sperm, he and the surrogate have an equal biological claim. However, the legal father depends on the surrogate's marital status. If she is married, her husband will be the legal father. [252] If not, the commissioning father could obtain parental responsibility.

The law intended that a woman's husband/ partner be viewed as the legal father during fertility treatment, even when donor sperm is used. This has unintentionally made things more difficult for a commissioning father. It removes the right for him, as the genetic father, to be automatically recognised as the legal father. He is treated in the same way as a sperm donor and afforded no legal significance.

For the same reasons as those concerning abortion a man cannot have sole rights over an embryo within a surrogate mother. If the surrogate is single, the commissioning father can obtain parental responsibility, as mentioned above, once the child is born. This does not entitle him to remove the child from the birth mother without her permission.

Therefore as the law exists, the commissioning father has more rights than the commissioning mother.

If the commissioning mother was allowed sole rights over the embryo within the surrogate, she would encounter the same legal difficulties as a man attempting to interfere in the decisions of a pregnant woman. However, if it is her fertilized egg growing within the surrogate should she be recognized as the mother once the baby is born and therefore outside of the surrogate? The only way to achieve this would be to alter the legal definition of ‘mother'.

The term ‘father' now legally encompasses men who are willing to accept that role before embarking on fertility treatment. It no longer relates to just a genetic link. Until the advent of fertility treatments the mother was always the woman who gave birth. It was impossible to produce a baby without a woman's egg being fertilized within her body. Now it is possible to give birth to a child that is not genetically related to the birth mother. As contraception has separated sex and pregnancy, technology has separated genetic motherhood and gestation[253]. As Spar points out, the emotional and physical link between the baby and the birth mother cannot be subject to any contractual obligations[254]. It does not seem likely that the law will redefine the word ‘mother' until it is no longer required that a woman is necessary to bear a child.

Surrogacy is a method of gestating the embryo independent of the intended mother. However, because it involves a third person, whose rights also need protecting; the issues become even more complex. Some areas of the law which relate to abortion and IVF treatments, work against what might be considered just in the case of surrogacy.

The three different forms of conception, natural (sexual intercourse), assisted (using IVF technology) and conception by a surrogate mother have been discussed in this paper. It was found that the rights of each party are given different emphasis in law. In the case of abortion, the overriding concern is for the mother. Her rights to maintain her bodily integrity and give consent to treatment must be protected. In the case of IVF, the law grants equal consideration to a man and a woman up until the point of implantation. In surrogacy, the law protects the rights of the gestational mother and the best interests of the child, once born. Due to the different legal emphasis given to each party, judges have had to interpret the law and the complexities of the changing face of the modern family have been highlighted. The father of a child can now be determined by intention, genetic link and marital status. In comparison, the mother is always the woman who gives birth and this is not influenced by her marital status, intention or genetic link.