Nov 26, 2018

IVF: Matters Arising: A Critique Of Evans V. United Kingdom |Emaediong ofonime akpan




1.0     Introduction

Few technologies arrive unannounced and few remain unchanged overtime. The development of techniques to facilitate the fertilization of human eggs or ova is no exception. The medical sector has not been let off the hook of the technological wave that has blown across nearly all sectors of human lives. While IVF is now recognized as an acceptable medical technique to combat the surging problems of infertility, it is still being considered relatively novel.  It is pertinent to not that the innovation of IVF has not met with the same response like other medical intervention like; vaccines and the like.  


The new reproductive technologies constitute a broad range of technologies aimed at facilitating, preventing, or otherwise intervening in the process of reproduction.  In this piece of legal opinion the focus is on the legal and ethical issues associated with in-vitro fertilization in Nigeria. On 25th July 1978, Louise Joy Brown was born in Great Britain, being the first successful birth through the use of in-vitro-fertilisation. The IVF in its simplest form involves the hormonal monitoring and stimulation of the woman producing ova, harvesting the ova, mixing same with sperm in a petri dish containing a culture medium. It involves a three day waiting period (approximately) for embryo development, before the embryo is transferred back to the woman. IVF has come to challenge traditional views and positions on abortion. This has been occasioned by the right to destroy embryo with the consent of the couple. It the United Kingdom the traditional stand against abortion has been threatened by the freedom of a partner to withdraw from the procedure at any time and ordered the fertilised eggs or preserved spermatozoa to be destroyed.

2.0     Statement of the Problem

          The filial relationship that results from an IVF procedure is unprecedented and it comes with attendant problems which the legal framework ought to cater for. Legal disputes may include the determination of who has parental responsibility over a child begotten from IVF. The persons who have the natural rights have become expanded from the usual two (mother and father) to; the sperm donor, the egg donor, the surrogate womb mother, and the couple who raises the child. IVF also raises questions of rights and liabilities as they apply to the fetus, donors, and adoptive parents, as well as the role of physicians and parenthood organisations, researchers, corporations, and government in ensuring that the practice of IVF is not performed without adherence to strict rules of ethical guidelines.

          According to Mccartan the role of the law in guiding scientific development has not been clearly established, and in fact regulation of scientific advancement has not been welcomed by those active in progressive areas of medical research. She cites Burger, who opined that the law does govern the advancements of medical science.  This article is necessary to bring to the fore the challenges inherent in the practice of IVF and innovative roles the law can play to cushion the adverse effect of such challenges.


3.0     Legal/ Ethical Aspects of IVF

          Practical concerns raised by IVF which have ethical and legal implications are disposal of surplus embryos created in vitro that prove unnecessary or unsuitable for a couple's reproductive requirements, implantation of several embryos that results in high, multiple pregnancy, and creation of the same result by natural conception following medically induced super ovulation, and the option of so called 'selective reduction' to reduce multiple pregnancy. Multiple pregnancy involves health care of mothers, foetuses in utero, and newborn children, possibly born prematurely with low birth weight and risk of associated complications.  

          Central legal issues in assisted reproduction are the consent of both members of an infertile couple, consent of gamete or embryo donor, and the legal status of a resulting child. A husband's consent to his wife's insemination by donor is usually required, in order that any legal presumption of his fatherhood be maintained. His objection would render the child not his legal responsibility, and he may disclaim paternity if the wife is serving as a surrogate mother to another man's child. Sperm or ovum donors must consent for lawful donation, but recovery of sperm from unconscious and recently deceased men raises concerns such as how one can prove that his consent was obtained in his unconscious state or before his death. Legal questions that are also unresolved in many countries arise when donation of a couple's cyro-preserved embryo is possible, but only one member of the couple consents.

          One of the consequences of assisted conception is the issue of parental responsibility of a child begotten of IVF. This is adequately demonstrated in the American case of the Calverts. Crispina and Mark Calvert were unable to conceive a child due to the fact that Crispina had had hysterectomy. Her ovaries, however, were intact and capable to produce valid ova. Therefore, they drew up a contract with Anna Johnson who agreed to be a surrogate mother and later relinquish the child to the Calverts. Calverts agreed to compensate Johnson $10,000 in three installments part paid before and part after the birth of the child. After successful in vitro fertilization and transfer of the embryo to Johnson's womb, Anna required full payment of the sum threatening that otherwise she would keep the baby. Three successive courts decided in favour of Calverts. The basis of the decision was different in different courts: two courts relied directly on genetic relatedness of the Calverts to the child and invoked the assumptions of other possible ways of determination of parenthood. The third and final court based its decision purely on the concept of 'intent' of the parties, that is, what was the intent of them when they entered the contract?

          The court case reveals two aspects of the impact of the new reproductive technologies in defining kinship and gender. First, it demonstrates that due to the new reproductive technologies, society is forced to re-evaluate its assumptions about what is the basis of kinship and gender relations. Second, they show that the 'biogenetic' basis, although perceived as the basis, cannot be applied in the real situations. The procreative act, marriage, donors of genetic material and the ones that engage in the nurturing of the new creature (embryo and later the child) can all now be separated. Prior to the new reproductive technologies, they all were supposed to be parts of the same biologically grounded process. Since these roles can be delegated now to different people, one cannot use the biological processes as the determining factor to identify the kin persons. The intention of the court to put more emphasis on the social seems to be logical since it still can identify one person. While the biological facts have become confusing, the social ones remain the same as before.`

          The above attests to the fact that the implications of IVF spans beyond legal implications to, medical, societal and psychological implications



4.0     Evans v. United Kingdom: A Critique

The facts

          Natalie Evans and her partner, Howard Johnston, began treatment for Assisted Conception at clinic In Bath July 2000. Sadly, preliminary tests revealed that Evans had serious precancerous tumors in both her ovaries; as soon as some eggs has been harvested for the purposes of IVF, her ovaries were to be remove. It was during the same hour-long consultation in October 2000 that Evans and Johnston were informed both of the existence of the tumors and of the policy regarding consent to IVF. Eleven eggs were harvested and six embryo’s created and placed in storage, in November 2000, Evans underwent an operation to remove her ovaries. The plan was for the implantation to take place once Evan’s health permitted, following a recommended minimum period of two years. The alternative and less certain procedure of freezing unfertilized eggs was not available at that clinic at the time. Unfortunately, in May 2002 the relationship between Evans and Johnston broke down. In July, Johnston wrote to the clinic withdrawing his consent to implantation


In viewing the decision of the court through the lens of a contract, with Natalie Evans as the offeror and Howard Johnston being the offeree, there remains the question of appropriate remedy where the contract is breached by one of the parties in this case Howard Johnston. The question that is pertinent to ask is; whether the acceptance communicated by the offeree to the offeror contributed to her decision to have her ovaries removed. While it may be argued that the removal of her ovaries were inevitable, the acceptance to be a part of the IVF procedure by her partner led her to carrying out the procedure knowing it was her only chance to bear children. Granted that the Human Fertilisation and Embryology Act 1990 provides that either partner may withdraw his or her consent in writing at any time before implantation in the woman’s uterus. However, a marriage of the provisions of the Article 16 of the United Nations Declaration of Human Rights (1948) and Article 23 of the International Covenant on Civil and Political Rights, would enable one to realize that the right to marry, found a family and reproduce are inalienable rights. It is not known to the writer at the time of writing this work whether there exists a prototype of a pre-nuptial agreement for IVF procedures to protect women like Natalie Evans. The object of the contract being the expected results of the IVF procedure which would have seen that Natalie is not denied the right to found a family.     



5.0     Conclusion/ Recommendations

          The court’s decision in Evans V. United Kingdom rests the deciding swing of the pendulum in the decision to withdraw consent. IVF comes with a plethora of implications for inheritance laws, family law and adoption law to mention but a few. The question remains as to what the response of the law is in the face of these teeming challenges. It is largely unclear whether there exists a demarcating line between one partner’s right to found a family and the other partner’s right to withdraw from an IVF procedure. The law will need to re-evaluate the traditional underpinnings of the ban on abortion. Future research may examine with a view to charting a new course on the modalities to be put in place for timeous regulation of IVF in Nigeria.



REFFERENCES

1.     R B Bernholz and G N Herman, ‘Legal Implications of Human In Vitro Fertilization for the Practicing Physician in North Carolina’ (1984) 6(1)Campbell Law Review,p.44.

2.     M K McCartan, ‘A Survey of the Legal, Ethical, and Public Policy Considerations of In Vitro Fertilization’ (2012)2(3) Notre Dame Journal of Law, Ethics & Public Policy, p.696.

3.     W E Burger, ‘Reflections on Law and Experimental Medicine’, (1968) 15 UCLA Law Review, p. 436, 440

4.     R J Cook., B.M. Dickens and M.H. Fathalla Reproductive Health and Human Rights. (New York: Oxford University Press. (2003).

5.     The case of R. V. Human Fertilization and Embryology Authority, exp. Blood (1997) 2 All ER 687 (Court of Appeal, England).

6.     K Sedlenieks, Klavs, ‘New Reproductive Technologies: Towards Assisted Gender Relations.’ (1999) An Essay for MPhil Degree, Department of Social Anthropology, University of Cambridge.



Akpan, Emaediong Ofonime is currently undergoing postgraduate studies at the University of Uyo and majors in Consumer Protection. She can be reached at akpanemaediongofonime@gmail.com

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