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April 16, 2007

What are the lessons of the Natallie Evans case? Human rights mean anger, not satisfaction - argues Theodore Dalrymple

Posted by Theodore Dalrymple

Last week (10th April 2007) the European Court of Human Rights ruled that Natallie Evans did not have the right to use the frozen embryos that she created with her ex-partner to have a child against the will of that ex-partner. (Woman loses battle to use frozen embryos created with her ex-fiancÚ, Guardian, 11th April 2007). Theodore Dalrymple argues that the case shows everything that is wrong with a rights-based approach to public policy.

Hard cases make bad law but good philosophy. In the words of those parents who abuse or neglect their children, we love them to bits; and philosophers spend a lot of their time dreaming up hard cases in refutation of one purported principle or other.

It pains me to have to say it, but the European Court of Human Rights came to the right decision in the case of Natallie Evans, the 35 year old woman fighting for her supposed right to have an embryo, that is to say her ovum artificially fertilised by the sperm of an long-estranged boyfriend, implanted in her womb. He, of course, claimed the opposite right: the right not to allow her to have a child with half his genes.

Needless to say in our times of what psychiatrists call high expressed emotion, pictures appeared everywhere of the sobbing loser of the court case (one day or other, of course, the decision will be overturned but too late for her). We were invited to feel terribly sorry for her, but I confess that I did not. I was more irritated than moved by her solicitor's statement after the case was over that:

Her sad loss will remain for ever.
The whole sorry case illustrated two important points: the first that the extension of choice is not always conducive to human happiness, and second that the culture and psychology of rights leads only to personal conflict, egotism and large legal fees.

Natallie Evans married a man (her third husband by the age of 27) and then contracted cancer of the ovaries. They had to be removed, and therefore she would never be able to conceive in the natural way, but before they were removed, several ova were removed and fertilised by the sperm of her then husband, with whom she intended to have a child. However, their marriage then broke down. She then decided, now that she had a new boyfriend, that she wanted a child by the stored embryo, with her new boyfriend as father; but the ex-husband sperm donor dissented. The lawyers must have rubbed their hands in glee.

The first thing about this terrible mess is that IVF made it all possible. At one time she would have been infertile and that would have been the end of it. She would have regretted her own infertility, but by now would have - in the words of Mr Blair - "moved on". There would have been no tears outside courtrooms, though quite a few lawyers would have been considerably poorer.

Well, you say, that is not enough to condemn IVF as a procedure. Think of all the bouncing happy babies born to ecstatic mothers that IVF has resulted in! Unfortunately, IVF is successful in only 20-25 per cent of cases: that is to say, it is overwhelmingly unsuccessful. It is, moreover, a medical technique that tends to obsess those who undergo it, who devote inordinate quantities of energy to it; and quite a number of patients, of course, have to pay very large sums of money for that failure.

In other words, it seems to me very doubtful that the technique has added to the sum of happiness in the world. More likely, it has added to the sum of disappointment and frustration. Of course, it might be argued that unless we continue to use the technique, we will never get the experience to improve the success rate, and this is true; but how much hypothetical future happiness cancels out present disappointment?

There is an intangible cost to the procedure as well: it extends the promethean bargain to the point where there is yet another limitation we cannot accept. But without an ability just to accept limitation when life imposes limitations on us is a recipe not only for misery but for querulousness.

Let us come now to the question of rights but move away for a moment from the highly emotive and contentious area of human reproduction. Let us consider dogs.

I have a right to own a dog. That, however, does not mean that anyone has an obligation to supply me with a dog. My right to have a dog does not entail the possession of an actual, tail-wagging beast.

Suppose I live with somebody else. That somebody else hates dogs, or suffers from asthma in the presence of dogs. Do I still have the right to a dog? The answer is probably yes, but no civilised person decides his behaviour on the basis of his rights. Furthermore, suppose I can neither afford a dog, nor keep it in good surroundings - good, that is, for a dog. Do I still have a right to a dog? Yes. But should I take steps actually to have one? No.

People who are fixated on their rights - many of them rights only in the legal sense, and therefore subject, at least in theory, to abrogation by legislators, though there is a tendency for rights once granted to remain engraved on the stone of people's minds - generally come across as selfish, querulous, egotistical and lacking in subtlety. They imagine that the world was made for their convenience, a vast supermarket for them to pluck whatever they want from the shelves of life. When they come across some bottleneck in the supply of what they want, whether man-made or natural, they grow angry. It is not my observation that such people are happy.

Once a population has lost its understanding of the complexity of right behaviour, once it thinks that the only way to decide how to behave in really important matters is by appeal to a hierarchy of rights (my right, by happy coincidence, always trumping your right), the only way to decide is through the courts, which have to decide on very narrow principles. This is good for lawyers, and perhaps for journalists who pick over the bones of the conflict, but not for anyone else. No wonder when you walk down the street you see so many frowns and furrowed brows. See for yourself: what proportion of passers-by in the street walk with relaxed facial muscles? Human rights mean anger, not satisfaction.

Theodore Dalrymple is a writer and worked for many years as an inner city and prison doctor.


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And as C.S.Lewis (I think) wrote: Bad laws make hard cases.

Posted by: Robert H. Olley at April 21, 2007 10:08 AM
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Theodore
A short response if I may seeing as how you single me out for criticism in your comment. As Natallie's solicitor for the past five years perhaps I may set the record straight:
1. Natallie has only been married once.
2. She attended for an appointment with her then fiance Howard Johnston to discuss infertility as they were actively trying for a child. She was advised that the reason for her infertility was pre-cancerous ovaries which would need to be removed surgically. She was offered one cycle of IVF treatment to preserve her fertility and 45 minutes after being told of the cancerous condition she and Howard were in the IVF clinic signing consent forms. It was explained to them both that their joint consent was required if Howard contributed his sperm and that if the relationship ended consent could be withdrawn. It was accepted by Howard in his evidence in the High Court trial that:
a) Natallie raised with him the prospect of their relationship ending and was reassured by him that she need not worry;
b) he told Natallie there was no need to consider other options such as donor sperm or even the (then experimental) option of egg-freezing as he would be there for her;
c) he was less than honest with her at this time because he knew that if he had told her of his true feelings she would have left him.
3. Natallie relied on his assurances and his sperm was used to create 6 embryos which were placed in storage. Natallie was advised that she would have to wait two years before using them.
4. Unfortunately the relationship ended shortly thereafter when Howard left her and he then requested that the embryos be destroyed knowing full well that this would mean Natallie would be unable to try for a natural child of her own.
5. Rightly or wrongly, Natallie saw these embryos as her children. She felt strongly that the process of life had begun and the loss of the embryos is a source of great distress to her and will continue to be so.
6. Whilst Natallie had the benefit of Public Funding (Legal Aid with fixed rates of pay well below the commercial rate) for the initial High Court and Court of Appeal hearings her applications to the House of Lord and both applications to the European Court of Human Rights were effectively funded pro bono.
7. The final judgment of the European Court was that whilst there had been a major interference with Natallie's human rights any breach was proportionate when balancing the respective competing rights. The Court held that the UK Government enjoys a broad margin of appreciation to legislate in this field and while there could have been many fairer ways of determining this dilemma which would have permitted Natallie the chance to have a natural child of her own, the way the UK government chose to do so (by permitting Howard to withdraw his consent in these circumstances) was not so unreasonable as to be outside that wide margin and in breach of the Convention.
8. Your family pet analogy is a good one. On the breakdown of a marriage one party cannot require the other to have the family pet destroyed. No court would require a husband who was willing to look after the family dog following a divorce to have it put down simply because his former wife no longer wanted the pet. Some may think it odd that a family pet enjoys greater protection under the law than human embryos.
9. I fully accept that this is a case that divides opinion and on which there are competing legitimate views. However, opinion is best formed after a proper appreciation of the facts. Mis-statement of the facts and reverting to stereotypes of greedy lawyers assists no-one.
Many thanks

Posted by: muiris lyons at April 22, 2007 07:01 PM
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If you think pets have better protection than human embryos then spare a thought for those non-responsive patients without a living will.

Posted by: Peter Ness at April 26, 2007 03:33 PM
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"Your family pet analogy is a good one. On the breakdown of a marriage one party cannot require the other to have the family pet destroyed. No court would require a husband who was willing to look after the family dog following a divorce to have it put down simply because his former wife no longer wanted the pet. Some may think it odd that a family pet enjoys greater protection under the law than human embryos."

The force of your example relies on the supposition that a frozen embryo has sentience comparable to that of a dog; sensibility of pain, fear, affection, and so forth. The notion that discarding eight cells is morally equivalent to killing a dog is the sort of idea lawyers feel compelled to peddle. Perhaps I do you an injustice --- maybe you are a vehement "pro-life" campaigner. Somehow I doubt it...

Ms. Evans's post-verdict statements were quite telling:

"It's very hard for me to accept that the embryos will now be destroyed and that I will never become a mother."

Adoption is always a possibility, so that "I will never" implies some determination on her part --- unless of course, she means "I can never". Either way, I'm sure that infertile women who have adopted children would find this remark most intriguing.

"I would ask Howard to consider whether he could ever permit me to have the children I so dearly long for..."

That floated wonderfully in the press. A willingness to engage in public moral blackmail in the pursuit of one's ends has become so common as to be unremarkable. It is now as accepted as the crass and idiotic "How do you feel?" questions asked of the recently bereaved/traumatised/etc.

"All I was fighting for was my right to become a mother"

And all "Howard" was "fighting for" was his "right" not to father a child by a woman whom he no longer loved. What gives?

...And as usual, nobody's mentioned the child's "rights" in all of this: given the correlation between fatherlessness and behavioural problems in children, one imagines that the much-reviled Mr. Johnston probably did the kid-to-be a favour. Particularly if the poor wee bairn would have only ended up with a biological father who (as Ms. Evans's father helpfully explained to the world) had no "better nature" at all. Indeed, Mr. Johnston may have been "less than honest with her" (he doesn't exactly come across as being the quintessence of probity), but after the relationship foundered, his behaviour was the closest thing to responsibility shown by either party. ...Though probably more by coincidence than design.

Posted by: Paul H. at August 9, 2007 07:52 PM
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Paul, so it is better that the child was not born because the father had no 'better nature'? What kind of logic is that?

Also

"It's very hard for me to accept that the embryos will now be destroyed and that I will never become a mother."

Adoption is always a possibility, so that "I will never" implies some determination on her part --- unless of course, she means "I can never". Either way, I'm sure that infertile women who have adopted children would find this remark most intriguing.

So, this woman has just lost the chance to ever give birth to her flesh and blood, and giving her post-verdict statement. You're picking on her grammatical mistakes?

As Mr. Muiris Lyons pointed out, the facts are all there. Her former fiancee misled Natalie Evans. At the very least, we should be sympathetic to the poor woman.

Posted by: Ahsan Mustafa at May 20, 2009 04:54 PM
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