It is hard to feel anything but immense sympathy for Natalie Evans, who lost her fight in the European Court of Human Rights this week to use frozen embryos from a previous relationship as her only hope of having a child that was biologically hers. Her desire to have a child is undeniably strong, a point proven by her determination in taking the case against her ex-partner, Howard Johnston, who had refused his consent to use the embryos, as far as she did. As the embryos were originally created as an insurance against infertility as a result of treatment for ovarian cancer, it seems particularly cruel that Evan's chance of being a mother should now be denied, based on the apparent whim of her ex-partner. Had the embryos been conceived with an unknown sperm donor, or had Evans just had her eggs frozen, then presumably that possibility would remain, as the issue of the other partner’s consent would not have entered the equation. Now, because Johnstone has refused his persmission for the embryos - which are after all half his - to be implanted, they are likely to be destroyed, along with Evan's hopes of being a mother.
None the less, given that these were the circumstances in which the embryos were conceived, it's hard to see how the judges could have reached a different conclusion in this case. No matter how tragic the situation for Evans, or how much the verdict may offend our natural sympathies, the right of Johnston to refuse his consent to have a child with her, whatever his reasons, must be respected.
It is a point somewhat lost on much tabloid and even broadsheet opinion, which has tended to side with Evans against Johnstone in the inevitable tug-of-war of human emotion. As Shiela McLean points out in an excellent post for the Guardian’s Comment is Free, ‘there is sometimes an air of "why doesn't he just say 'yes'?" about the commentary on his refusal to allow the embryos to be implanted.’ But, as McLean highlights, ‘his reason for refusing is essentially the same as her reason for wanting to proceed. She wants to have children; not, it appears, any children, but ones that are biologically linked to her. The biological link, therefore, seems to be central to this case. That link is precisely why Mr Johnston has refused to allow the implantation. In other words, whether or not she expects anything from him in terms of emotional or financial support, the fact that his biological child or children might be out there somewhere is deeply troubling for him and might reasonably be expected to affect any future relationships he may enter into.’
The philosopher Aristotle famously wrote that ‘the law is reason, free from passion’. No more is it applicable than in this case, where a verdict on the side of passion would have resulted in denying the entirely legitimate and reasonable right of someone to choose whom they should father (or indeed mother) a child with. Whether Johnstone can live with the fact that his choice has effectively denied Evan's the chance - and here 'chance' must be distinguished from 'right' - of having her own biological child is a matter for his own conscience. It is not an area where the law, or indeed tabloid editors, should be involved.