On 10 April 2007, Natallie Evans lost the final stage of a four year legal battle for the right to implant embryos created with her eggs and the sperm of her former partner. Ms Evans had been diagnosed with cancer, and treatment necessitated the removal of her ovaries, leaving her sterile. Creating and storing embryos would, it was hoped, keep the possibility of motherhood open to her.
However, Ms Evans' hopes were shattered when her relationship broke down and her partner, Howard Johnston, withdrew his consent for the embryos to be used. Since the consent of both parties is required for fertility treatment or even for ongoing storage of embryos, it seemed that Ms Evans would have toforego her dream of parenthood. But she was unwilling to submit to the loss of her embryos without a fight, hence the protracted legal struggle which culminated in the European Court of Human Rights' rejection of Ms Evans' case.
Many people, while sympathetic to Ms Evans' plight, felt that the court had come to the right conclusion. After all, the consent protocols are clear and were accepted by both parties at the time the embryos were created. But while in the eyes of the law the correct decision may have been reached, the case raises some interesting questions. The implication was that people should not be forced to become parents, all other things being equal. Is this an acceptable conclusion? And is it consistent with other legal and social assumptions?
To answer this question, we need firstly to examine the concept of parenthood. I suggest that parenthood is best understood not as inhering solely in genetic ties. Rather, it is a bundle of concepts which may include some or all of the following: being part of a causal chain that brings about the creation of a child; having the intention to procreate; undergoing gestation and childbirth; acquiring legal rights and responsibilities; sharing genetic links; nurturing and rearing.
We may be justified in believing that some of these types of parenthood should not be forced on unwilling people. Forcing people to undergo gestation and birth against their will seems clearly unacceptable. But perhaps the 'right' not to be a parent in the genetic sense has been mistakenly extrapolated from the idea that enforced gestational parenthood is a moral wrong.
The presumed right to abortion is sometimes construed as stemming from a right not to be a parent. But to whom does this right apply? Men are not allowed to force women to undergo abortions, so does this mean that the right applies only to women? Margaret Brazier has suggested that fundamental human rights 'must be gender-neutral' (1). If this were true, then surely a right not to be a parent ought to apply to both sexes.
However, abortion cannot simply be described as an exercise of the right not to be a parent in the genetic sense. If a woman has been impregnated with an embryo that has no genetic link with her, does this mean she has no choice whether or not to continue with the pregnancy? Surely the important fact is that the embryo is inside her body, not that it does or does not share her genes.
This is a vital fact to remember, since what we are protecting here is people's autonomy over their bodies. It is perfectly coherent for respect for autonomy to be afforded to men and women alike. On the other hand, the right not to be a genetic parent, when it conflicts with physical concerns, seems either to come with so many constraints as to be almost worthless, or to lead to unpalatable conclusions. (E.g. that a pregnant woman can be coerced by those who are the genetic parents of the embryos she is carrying.)
Maintaining autonomy over one's body is of the utmost importance. Women have fought long and hard for the right to do so. We must not conflate this with the altogether separate - and lesser - issue of enforced genetic parenthood.
The harms involved in physical coercion and enforced parenthood are very evident. However, the harms involved in enforced genetic parenthood are far less clear. In fact, men undergo enforced genetic parenthood all the time, and society scarcely registers the fact. A man whose partner is pregnant cannot demand she has an abortion. But we could feasibly allow men to sign a waiver stating that they do not consent to the birth of the child, and that they wish to play no part in the child's life or upkeep (2).
It seems highly discriminatory that the partners of fertile women have no rights whatsoever in this respect. A man whose partner has become pregnant without his desire or knowledge has the legal and financial obligations of parenthood thrust upon him, whereas men whose partners are infertile are accorded the right to veto the entire reproductive enterprise.
This being the case, perhaps we should be more sympathetic to men whose partners are pregnant without their consent. Mr Johnston is simply one of many, many men in the UK who go partway toward parenthood and then get cold feet. There is a degree of moral opprobrium associated with reluctant fathers. We are encouraged to see them as being selfish, feckless and irresponsible. But taking the risk of unprotected sex and then deciding one doesn 't want to be a father is arguably no more culpable than creating embryos and then changing one's mind. The latter is perhaps worse, as it involves reneging on an agreement and causing grief to one's partner.
The asymmetry of the law with respect to fathers and mothers, whether fertile or not, needs to be straightened out. Even after the ties of gestation and birth are over, mothers are not forced to accept the further legal and financial obligations of parenthood. They can choose to give their children up for adoption. Men do not have this right. They are utterly at the whim of their partners' choices. In this environment, men's rights are very much constrained compared to those of women. And this constraint extends far beyond what is justified by the mother's physical connection with the child.
It is my contention that this injustice should be remedied. Not by respecting men's or women's 'right' not to be parents, but by affording men and women the same rights in terms of choosing not to assume legal, social or financial responsibility for the child.
In the context of this far greater injustice to men in the UK, I have limited sympathy with Mr Johnston. He, along with other men and women, should have the opportunity to state his refusal to fulfill the function of a social parent, and this should be recognisable in law. If this were possible (and we allow it in the case of gamete donors), it would be hard to see what further harm could come to Mr Johnston purely from the knowledge that a child might be born with some of his genes. Certainly any such harm is far harder to identify or quantify than the harms of enforced physical, legal or financial parenthood.
Sources and References
1) Margaret Brazier, 'Reproductive Rights: Feminism or Patriarchy?', John Harris and Soren Holm, eds., The Future of Human Reproduction (Oxford University Press, 1998)
2) This view is forcibly argued by Elizabeth Brake in her paper 'Fatherhood and Child Support: Do Men Have a Right to Choose?