Deciding the fate of frozen embryos

Medical Law Review

Volumn 13, Issue 2, 2005, Pages 244-256

  Alghrani, Amel ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 27744569619     PISSN: 09670742     EISSN: None     Source Type: Journal    
DOI: 10.1093/medlaw/fwi014     Document Type: Note

References (31)

1. Hereinafter Evans (CA).
2. Natalie Evans v. Amicus Healthcare Ltd, Howard Johnston, Royal United Hospital Bath NHS Trust, The Secretary of State for Health, the Human Fertilisation and Embryology Authority. Lorraine Hadley v. Midland Fertility Services, Wayne Hadley, the Secretary of State for Health, the Human Fertilisation and Embryology Authority [2003] W.L. 22187554, hereinafter Evans (HC).
3. See www.hfea.gov.uk. Press release of 25 June 2004 available at: http://www.hfea.gov.uk/PressOffice/Archive/1088161991.
4. E. Jackson, 'Conception and the Irrelevance of the Welfare Principle (2002) 65 M.L.R. 176
5. S. Millns 'Making "Social Judgements that Go Beyond the Purely Medical": The Reproductive Revolution and Access to Fertility Treatment Services' in J. Bridgeman and S. Millns (eds), Law and Body Politics: Regulating the Female Body (Dartmouth 1995);
6. E. Sutherland, 'Man Not Included - Single Women, Female Couples and Procreative Freedom In The UK' (2003) 15(2) Child and Family Law Quarterly 155.
7. M. Warnock, A Question of Life: The Warnock Report on Human Fertilisation and Embryology (1984) at para. 2.9.
8. Evans (CA), para. 97.
9. C. Donnellan, Lone Parent Families (Independence Educational Publishers, 2004) at 33.
10. Suzi Leather, Human Fertilisation and Embryology Authority, Annual Conference 2004, as reported in 'IVF "Father Figure" Law Attacked' (BBC News, UK Edition, United Kingdom, 21 January 2004). http://news.bbc.co.uk/1/hi/health/3416055.stm (accessed on 30 May 2004).
11. [2003] 1 F.C.R. at 518F.
12. Evans (HC) para. 309.
13. Evans (HC) para. 289.
14. HFEA 1990, Schedule 3, para. 2(2)(b).
15. Prior agreements as to the disposition of embryos have been enforced in the United States. In Davis v. Davis 842 S.W. 2d 588 (Tenn. 1992), the Tennessee Supreme Court set out a three-part test to be applied when a couple disagrees over the disposition of their embryos: (1) The preferences of the progenitors. (2) If gamete donors disagree over disposition courts are directed to enforce any prior agreements between the parties. (3) In the absence of prior agreement, courts are advised to balance the relative interests of the parties. When those interests are in equipoise, courts are advised to favour the party wishing to avoid procreation, as long as the other party 'has a reasonable possibility of achieving parenthood by other means than use of the pre-embryos in question'. Similarly in Kass v. Kass 673 N.Y.S 2d 350 (N.Y 1988). The New York Court of Appeal held embryo agreements governing embryo disposition should be presumed valid and enforced.
16. Evans (HC) para. 174.
17. [1988] Fam. 122.
18. [1980] 3 E.H.R.R. 408.
19. Evans (HC) para. 176.
20. Evans (CA) para. 19.
21. Vo v. France (Application No. 53924/00). The case concerned a female applicant who wanted to carry her pregnancy to term, but as a result of medical negligence was forced to have a therapeutic abortion. Relying on Article 2 of the Convention, the applicant complained of the authorities' refusal to classify the unintentional killing of her unborn child as involuntary homicide. She maintained that France had an obligation to pass legislation making such acts a criminal offence. In declining to treat a fetus as a person under the convention, the Court reasoned 'that the issue of such protection has not been resolved on the majority of Contracting States themselves...there is no consensus on the scientific and legal definition of the beginning of life'. The Court further noted that the 'life of a foetus was intimately connected with that of the mother and could be protected through her'.
22. [2001] 2 F.L.R. 582.
23. Evans (CA) para. 69.
24. Evans (CA) para. 67.
25. Evans (CA) para. 109.
26. HFEA 1990 Schedule 3, para. 6(3).
27. Evans (HC) para. 208.
28. See H. LaFollette, 'Licensing Parents' (1980) 9 Philosophy and Public Affairs 182-97
29. P. Tittle, Should Parents Be Licensed? (Prometheus Books 2004).
30. The consequences of sections 28(2) and (4) HFEA 1990 is that were Mr Johnston to have reinstated his consent, and Ms Evans to have found a new partner or remarried, the future husband would be deemed the legal father, and thus Mr Johnston would incur no financial obligation.
31. See the Department of Health's press release of 20 January 2004, available at http://www.dh.gov.uk/.