Fun with medicine and ethics: IVF and consent

[nerdanel]

[I would like to use this thread for discussion of "medicine and ethics" issues that are not abortion. I have a specific example to start off the discussion, but am fine with other issues being raised over time.]

In one of my classes, we studied the European Court of Human Rights case of Evans v. United Kingdom, [2008] 46 EHRR 34. In a nutshell, here's what happened:

A woman in an opposite-sex relationship had pre-cancerous ovarian tumors. She had eggs extracted for the purpose of IVF. Half of the eggs were fertilised with her then-partner's sperm. (The other half were frozen, but unfertilised frozen eggs could not reliably be preserved.) She then had surgery to remove her ovaries. The plan was to undergo embryo implantation two years later, after her body had time to recover from the surgery. Unfortunately, eighteen months later, her relationship ended. Under UK law, her partner had the right to revoke consent to the use of the embryos fertilised with his sperm, and he did so. The clinic notified her that they were legally required to destroy the embryos. She sought an injunction against their destruction. She lost before the trial court and the UK Court of Appeal (intermediate appellate court). The then-UK House of Lords (now the UK Supreme Court) denied review. She then sought review of the domestic decision before the European Court of Human Rights in Strasbourg, France, where she lost again. The legal losses meant that she would almost certainly never have a biological child.

If you want to participate in this discussion, but don't care about the legal issues involved, feel free just to answer this question: should this woman have been allowed to use the fertilised embryos to conceive her own biological child, over her ex-partner's objection? If it makes a difference to your response: he would have had the option to disclaim all legal and financial responsibility for the resulting child, if he had so chosen.

If you care about the legal issues involved, read on:

The critical legal issue was the lawfulness, under the European Convention on Human Rights (ECHR), of the UK domestic legislation which allowed her partner to withdraw his consent to the use of his sperm (or embryos created therewith) at any point until the embryo's implantation in her uterus. (NB She, too, was similarly entitled to withdraw her consent to use of her eggs until implantation.) The ECHR's Article 8 entitles each European resident to the right to respect for her private life. For Americans: Article 8 is used quasi-analogously to the "nontextual right" of privacy located in the US Constitution by the US Supreme Court; thus, Article 8 is relevant to many issues concerning sexuality, reproductive rights, and end-of-life decisions.

Here, the European Court granted the UK a wide "margin of appreciation," saying that there was no pan-European consensus on the scope of Article 8 where IVF and revocation of consent were concerned. It thus declined the female applicant's request to find that she had a greater Article 8 interest in the embryos than her ex-partner, either because IVF/egg extraction is more demanding on a woman's body than sperm donation is on a man's body, or because the impact on her of not being able to use the embryos (she would probably never have a biological child) was greater than the impact on him of her use of the embryos. It found that the absolute/bright-line rule that either partner could refuse consent to the use of their gametes until implantation promoted legal certainty and human dignity. The bottom line was that a woman's right to have a child that is genetically hers does not outweigh her former partner's right to respect for the decision not to have a genetically-related child with her.

I just read a vigorous feminist critique of this decision. I personally am in strong agreement with the European Court -- but for two quixotic reasons of my own.

My first reason is that I think that the right not to procreate - the right to choose not to bring human life into this world (either with a particular partner or at all) is an incredibly important right. As a current European resident, it's an important part of my understanding of my Article 8 right to respect for my private life. So I see the applicant's ex-partner's right under UK law - and in my view, under Article 8 as well - as very much entitled to respect. So for me, his right to refuse consent is determinative of this case.

However, for me a secondary consideration is that I would like to see a loosening of the nexus between "biological relationship" and "parenthood," given the number of children without parents who need homes. Throughout the world, the privileging of biological parent-child relationships serves to entrench the notion that biological parenthood is the preferred form of parenthood, which in my view contributes to the heightened anguish that someone might feel upon realizing - not that she could not be a mother - but that she could not be a mother to a child who is biologically related to her. The feminist critique of the Evans decision that I just read argued that the court had failed to appreciate the "particular emotional trauma" that women would suffer as a result of infertility: "The ability to give birth to a child gives many women a supreme sense of fulfilment and purpose in life. It goes to their sense of identity and their dignity." I for one would like to see a weakening of the view that giving birth (as opposed to parenting) should be the act that leads to a "supreme sense of fulfilment." If the court had recognized that this female applicant had so great a right in these embryos - because they represented her probably-only chance to be a biological mother - that it outweighed her ex-partner's right not to procreate (with her) ... it would have entrenched this conception of biological parenthood uber alles. And that is something I disagree with, at this admittedly-reproductively-inexperienced point in my life.

The reason that I am raising this here is that, as I said, my view of this case is shaped by some rather quixotic considerations that most people on this board are unlikely to share. So I'm interested in hearing other reactions to this case, and in seeing what values and priorities are reflected in others' responses.

[Primula Baggins]

I am not an attorney, so my language isn't intended to be legally precise, but: if he has the right to insist that an embryo he fertilized be destroyed before implantation, does he also have the right to compel a female sexual partner take a "morning after" pill after possibly unprotected sex? Or does his right apply only to embryos that happen to be outside her body?

[nerdanel]

I am not an attorney, so my language isn't intended to be legally precise, but: if he has the right to insist that an embryo he fertilized be destroyed before implantation, does he also have the right to compel a female sexual partner take a "morning after" pill after possibly unprotected sex? Or does his right apply only to embryos that happen to be outside her body?

The right only applies to embryos that happen to be outside her body. Your argument was also made in the feminist law review article that I mentioned, and by a female judge on the UK Court of Appeal (albeit one who ultimately said that the UK law was consistent with the ECHR.)

But there seems clearly to be a distinction between embryos which are physically inside the woman's body and embryos which are in a laboratory. Compelling the woman to destroy the former (e.g., via a "morning after pill") is a rather egregious invasion of her right to physical autonomy and bodily integrity. Insisting on the destruction of the latter does not interfere with any person's physical integrity -- unless one takes the strained reading that the woman already endured (consensual) interference with her physical integrity to extract the eggs for IVF.

As I was typing the preceding paragraph, I had this thought: now that this case has put women on some notice, one potential way to circumvent a partner's withdrawal of consent might be to fertilise some eggs with the partner's sperm and fertilise other eggs with an anonymous donor's sperm (thus avoiding the problem that unfertilised eggs apparently cannot be preserved as well as fertilised eggs). The odds that both the partner and the sperm donor will subsequently withdraw consent are considerably lower than the odds of just the partner withdrawing consent. Of course, paying for an anonymous donor's sperm would be more expensive and could lead to some awkward conversations with the male partner, but it may be one way for future women to safeguard their ability to have biological children, while also respecting the male partner's right to revoke consent.

[vison]

nerdanel's reasons are good reasons, and I agree with her reasons.

nerdanel, I am unalterably opposed to anonymous sperm donation under any circumstances whatsoever.

[Primula Baggins]

I can't come up with a rational justification for my visceral reaction to this, but it has a flavor of the camel's nose under the tent for me. If we grant the donor of the sperm a right over the result in these special circumstances, can we be sure that this right will never be used as the basis for an argument that the donor of the sperm should have similar rights over a fertilized embryo within the woman's body? Or is there a strong legal, um, line preventing this from happening?

[vison]

I can't come up with a rational justification for my visceral reaction to this, but it has a flavor of the camel's nose under the tent for me. If we grant the donor of the sperm a right over the result in these special circumstances, can we be sure that this right will never be used as the basis for an argument that the donor of the sperm should have similar rights over a fertilized embryo within the woman's body? Or is there a strong legal, um, line preventing this from happening?

I think that camel has his front feet in there, too.

At some point in the future, maybe not too far off, men will be able to bear children, to BE pregnant - it is not wild-eyed science fiction. A man has no uterus or ovaries, of course, but the male abdomen could be used for gestation.

Any man determined to be a father will be able to do so, providing he can find a woman to donate an egg. When the shoe is on the other foot, what might happen with these issues?[/u]

[nerdanel]

I can't come up with a rational justification for my visceral reaction to this, but it has a flavor of the camel's nose under the tent for me. If we grant the donor of the sperm a right over the result in these special circumstances, can we be sure that this right will never be used as the basis for an argument that the donor of the sperm should have similar rights over a fertilized embryo within the woman's body? Or is there a strong legal, um, line preventing this from happening?

I don't understand the camel analogies from either of you, vison and Prim. What am I missing?

And I really don't understand this slippery slope argument. Yes, we can be sure. The decisions in question articulate the line in question very clearly. Again: there's a huge difference between destroying an embryo in a lab and non-consensually destroying an embryo in a woman's body. The latter is, of course, a violent process - drugs like RU-486 are described as quite painful, causing several days of bleeding and cramps that far exceeds a normal period, etc. I honestly don't understand how you think that a person's right to do one will lead to another. It seems as incomprehensible to me as if you were to say, if a man can legally combine his sperm with a woman's egg in a laboratory, then what's to stop him from exercising the same right to "combine his sperm with her egg" via (unwanted) sexual intercourse? One does not lead to the other, period, full stop.

Oh, and vison - I'm curious - why are you strongly opposed to anonymous sperm donation? I have no strong feelings about the subject - I suppose I might be considered "loosely in favor" in the sense that I have no objection to it and have single/30something female acquaintances for whom THAT was the only route to biological children - but I am interested to hear your views.

ETA ...and to answer vison's hypothetical: assuming that a man could be impregnated with a fertilised embryo, the same rules would apply under the current legislation, I believe: a woman would be able to revoke her consent until the man was impregnated. If you are suggesting that the UK might, at that point, change the consent laws in order to give men seeking to conceive more flexibility ... to be honest, I have no idea. And it does still feel too sci-fi ish for me; I doubt Parliament has given much thought to your scenario. But if they were to change the laws in that manner, both women and men would equally be benefited and harmed: both would no longer be able to revoke their consent to their partner's (or former partner's) impregnation with the fertilised embryo.

[Primula Baggins]

As I said, nel, it's not a rational reaction; it's based on years of watching women's right to choose eroded by Restriction A, which most people agree is reasonable, but on which Restriction B is based, and then C is based on B ("if it's reasonable to suppose something is wrong at time X, how can you argue that it isn't wrong at time Y?"), until there's very little left at least in terms of access to services at a reasonable cost. But this is not about abortion, so I wasn't going to go there. I am only illustrating my own thought process, and I freely concede that not everyone sees what's going on with abortion rights as I described it. I'll drop the subject now.

As for men carrying fetuses—well, not without extensive internal modifications. It has sometimes happened that a woman carries a fetus to term outside the uterus, and in the modern era it's even known for such fetuses to be delivered safely. However, the abdomen isn't a safe environment for parent or child; the pregnancy can do great damage, and the environment can do things like ablate limb buds before the limbs form. Most such pregnancies end in fetal death, if not maternal death, and the fetuses are often seriously malformed.

I think some kind of artificial womb is a more likely development that would "level the playing field." And that would probably require a whole new field of law.

[nerdanel]

I think that what's interesting about your response is that we may be conceptualizing the same right differently. From the first paragraph of your post, I take that you are concerned that women be entitled to make their own decisions about reproduction, and that any narrowing of a woman's ability to make reproductive decisions is thus cause for some concern. (feel free to correct me if I've gotten that wrong) If we follow this line of reasoning (which may or may not be yours, but even if this is not how you feel, this is how some commentators on this case feel), the woman's right to make reproductive decisions may be privileged over the man's right, even before a fetus is growing inside anyone's body. For instance, some commentators and dissenting judges suggested that the woman's right should take precedence over the man's where:

(1) The woman had no biological children;
(2) This was the only way that she could have a child who was biologically related to her; and
(3) She had no access to a surrogate mother.

On the other hand, my conception of the right to choose places great weight on the right to choose not to have a child (which is the part of the right that I feel is consistently under the greatest threat). And I realized in reading this case that I feel very strongly that this right is wholly gender-neutral until the point where something is growing inside the woman's body. At that point, her right to control what is occurring inside her own body wholly trumps any male right (man, it is almost impossible to discuss this topic without getting to abortion!) But, before anything is occurring inside her body, if the embryo is still in a lab dish: I think both people should be able to change their minds, and that the embryo should not be implanted unless both people continue to be on board.

I think what I'm trying to say is: I also support a man's right to choose.

[vison]

My objection to anonymous sperm donation is that there are now thousands of people who were conceived that way and are trying to find their fathers. A few - a very few - have succeeded. Some sperm donors are known to have fathered a hundred children or more and there are even sad cases where siblings have met and married. I know it sounds like a bad romance (unromance, I suppose) novel, but it happens.

I don't know that anyone has "the right" to have a child. I don't mean that anyone should be able to interfere with a woman in any way, either to prevent abortion or anything else. Some women can't conceive and that's the way it is. I can say that easily and casually, of course. I had my children easily. But I know a half dozen women who went to ENORMOUS trouble to get pregnant, spending thousands and thousands of dollars and enduring years of medical procedures - when they could have adopted. Easy for me to say, as I admitted above.

A child, on the other hand, has the right to know who his birth parents are. I wouldn't say the right extends beyond that knowledge.

When I was a girl, women gave up their babies. Girls would vanish for a few months and come back slimmer. It's quite amazing when I tally them up - I knew a surprising number of such girls. They have all tried to connect with those children and mostly succeeded.

For one girl, however, the secret is still secret. She knows, her mother knew, and I know. She is still, at the age of 70, trembling in terror that she will hear from that child. She did not agree to have her name revealed at the adoption registry, but that can be overridden - and I think her daughter has the right to at least KNOW who her mother is.

[JewelSong]

My kids are my best thing. If I had discovered that I could not conceive, it would have been a very tough pill to swallow...very difficult to accept. But I think I would have eventually accepted it and adopted children.

I think it would be harder still to be fertile and have my fertility destroyed through illness. And even harder to have taken some precautions against that infertility by having my eggs harvested and fertilized, only to have to destroy those tiny embryos.

Devastating, I think.

However, I agree with the judge's decision in this case, although my sympathies are with the woman. It would seem that it might be a good idea for women in this position to somehow get some legal surety that the sperm donor (father) is not able to renege on his agreement and force the destruction of the embryos.

[Primula Baggins]

I think that what's interesting about your response is that we may be conceptualizing the same right differently. From the first paragraph of your post, I take that you are concerned that women be entitled to make their own decisions about reproduction, and that any narrowing of a woman's ability to make reproductive decisions is thus cause for some concern.

...

On the other hand, my conception of the right to choose places great weight on the right to choose not to have a child (which is the part of the right that I feel is consistently under the greatest threat). And I realized in reading this case that I feel very strongly that this right is wholly gender-neutral until the point where something is growing inside the woman's body. At that point, her right to control what is occurring inside her own body wholly trumps any male right (man, it is almost impossible to discuss this topic without getting to abortion!) But, before anything is occurring inside her body, if the embryo is still in a lab dish: I think both people should be able to change their minds, and that the embryo should not be implanted unless both people continue to be on board.

I think what I'm trying to say is: I also support a man's right to choose.

Perhaps what I'm objecting to is the least crack in the notion of a woman's right to choose; I can't help questioning a "right to choose" for men that exists only under such extremely specialized circumstances.

To me, the right to choose not to have a child should involve only one's own body and one's own actions. Not someone else's. If a child can be born without any further action on a man's part and without involving the man's own body, I don't think the man's right to choose not to have a child should be allowed to impose childlessness on the person whose body and actions would be involved in bringing that child to life and who presumably has an equal biological interest in the embryo in question.

I have a fourth-rate legal mind, and no legal vocabulary, but that's my attempt to explain what I'm thinking.

[Nin]

I just wanted to add that the argument: "she can always adopt" or to claim that so many children need homes does not really sound believable for me when I see how hard it is to adopt if you are not rich enough to "buy" your child in a Third-World country - and if you want to adopt a baby - and I do understand this desire, because the infant years of a child create such a unique bond. I do also understand he wish to adopt a "healthy" child - parenthood does not always include devotion. The concious choice of a handicaped child is different from the absence of choice when it happens to be yours. Thus, although often advanced as argument - also for the decision of not having children - I find it particularly lame.

I know several couples who could not have children and for whom the legal adoption procedure was impossible to achieve - or took so long that they grew too old. Many countries deny single adoptions, too.

This is just a side-mark, I have no clear opinion so far.

[vison]

Adoption is never simple or easy, and I shouldn't have tossed it out there as if it was.

I don't know. I can't imagine my life without my kids and grandkids. But if I was a young woman nowadays, I don't think I would have kids. I don't think I would go to extraordinary measures to have them.

But there's no way of knowing, is there?

A woman's right to her own body is paramount, in my eyes. There is simply no male equivalent to pregnancy, but if there was? I think things would suddenly seem different.

[nerdanel]

Perhaps what I'm objecting to is the least crack in the notion of a woman's right to choose; I can't help questioning a "right to choose" for men that exists only under such extremely specialized circumstances.

Ah. Whereas I don't see the right as especially narrow: I'm saying that both men and women have the right to change their minds about having a child with each other until such point as there is a fertilised embryo present inside a woman. In my view, that is the point at which the decision is made. At any time beforehand, consent can be withdrawn.
If the couple never reaches that point, then neither has any obligation towards the other to ensure that the other is able to have children. And childlessness could be the result for many reasons. If a relationship ends without conception having occurred, it would actually be the default position not to be able to conceive with your ex-partner's genetic material.

If a child can be born without any further action on a man's part and without involving the man's own body, I don't think the man's right to choose not to have a child should be allowed to impose childlessness on the person whose body and actions would be involved in bringing that child to life and who presumably has an equal biological interest in the embryo in question.

Whereas for me...that gives the man one of two choices: to wash his hands of his children, or to undertake some co-parenting arrangement with a person with whom he has decided that he does not want to have children. That is extremely troubling to me.

Let's put some meat on the hypothetical: imagine that the relationship ended because the woman in question is a chronic alcoholic and partier (with apologies to Ms. Evans, who I'm sure is neither of those things!) The man has serious concerns about the safety of the fetus and to-be young child. He may not be able to stop his ex-partner from procreating as an absolute matter, but he wants no part of it. He requests that the embryos be destroyed because he thinks it is morally untenable either to turn his back on the children who would be born into this situation OR to try to co-parent with his ex-partner.

Or, imagine that the woman has never touched a substance in her life, but has decided to embrace Christian Science and has announced that she will refuse all medical treatment on her minor children's behalf. This ends the relationship and causes the man to feel it is morally untenable to have anything to do with the creation of children born into such a problematic arrangement.

I just ... until conception, I think that he, too, has a right to choose.

Moreover, he is not imposing childlessness on the woman in question: that is a consequence of nature/her own medical condition. I understand, for instance, that IVF often takes many tries. If each of these embryos had been implanted inside the woman and had failed, and he refused to provide more sperm to use on the remaining frozen eggs (assuming their viability), he similarly would not be imposing childlessness on her. At most, he would be refusing to alleviate it.

I just wanted to add that the argument: "she can always adopt" or to claim that so many children need homes does not really sound believable for me when I see how hard it is to adopt if you are not rich enough to "buy" your child in a Third-World country - and if you want to adopt a baby

Actually, I didn't say "she can always adopt." I understand that there are many difficulties in doing so. I would like to see adoption procedures substantially revised to make things simpler for everyone, and cheaper for people with inadequate financial resources. But again, where emphasis is placed on biological parenting above all else, then there is comparatively less incentive to focus on making adoption more accessible (including to single people, as you rightly point out). My experiences within the gay community have also taught me that for same-sex couples, adoption may be more difficult or impossible.

My concern is with the near-absolute societal view that it is uniformly "preferable" to create new life rather than to parent life already existing in this world. This view reduces adoption to a "backup plan," to a thing to be tried only if the first prize of biological parenthood cannot be achieved. My view is that this harms both children who are seeking adoptive homes, people who cannot conceive biologically and feel that they've been robbed of the preferable form of parenthood (however individual this feeling may be, it is assuredly bolstered by societal attitudes), and people who prefer to adopt but encounter a range of judgment and criticism for not having their own children. The latter is very real in some segments of society. When I started to study Judaism as a teenager, I stated that I did not want biological children and would be more open to adoption. I was advised by multiple (traditional) rabbis that I hadn't sufficiently comprehended what my religious responsibilities would be as a Jewish woman; that the default/preferable position was to have biological children who would be considered halachically Jewish immediately (assuming my own halachic conversion); and that adoption was something to try only if I was unable to conceive biologically - not if I was unwilling. (An adopted child would not be considered Jewish even if adopted in infancy, and would have to convert after reaching the religious age of majority (12/13).) I find that sort of socially and religiously-entrenched hierarchy to be of profound concern.

[vison]

I seem to have been distracted from my original point: I agree with nerdanel as far as this man having the right to have those fertilized eggs destroyed as long as they are not inside the woman's body.

[Nin]

Nerdanel, I happen to think that the attitude towards biologal parenting is not necessarily societal but very deeply biological. It is "normal" to want a child of your own, and for most people it is not even a concious choice.

I wanted a third child, with all my heart. And for a while I thought a lot about adopting one: a little afghan girl... to see her taken out of that country. First, of course it is not that easy. Then, I also realised with my own children how much you look for yourself in your children: he (or she is having teeth at the same age as me, he has my smile, you act just likeyour grad-dad, the musical talent runs in the family for generations... ). It is something I never would have thought of before actually having children myself.

I don't know what kind of parent I would have been for an adopted child and I don't think that many people actually consider biological parenting as "better" or morally superior as all other forms. I just think that it is the normal, natural road and an instinct as strong as a sexual instinct in mankind.

I don't use "normal" as in opposition to "abnormal" - just that having your own children is what usually happens in your life without modern technical influence.

This said, I still have not made up my mind about that case - maybe because in general I regard IVF with some bewilderment.

[Pearly Di]

I am 1000% in agreement with Vison on the issue of sperm donor children and their fundamental right to know who their anonymous fathers are. UK adoptees and their birth parents fought for (and won) the right to have access to birth records for decades. Why should sperm donor people be denied the same right?

I don't know what kind of parent I would have been for an adopted child and I don't think that many people actually consider biological parenting as "better" or morally superior as all other forms.

If you are a good biological parent, Nin, you would make a good adoptive parent. Period. Because all good parents, whether they are biologically parents or not, know how to love and affirm their kids.

I'm adopted. My adoptive parents have two biological children and then they adopted me and four years later my younger sister (we are not related biologically).

I could bore for England on this topic of family ties and bonds, believe you me. The connections are immensely strong ... both the nature and the nurture ones.

My feelings on the case Nel cites (which I remember very well) are complicated, especially as in my view once an embryo is fertilised, it's a living being. The amazing advances in reproductive technology in recent decades have thrown up all kinds of complex (and troubling) ethical ramifications.

[vison]

The problem with the sperm donors is that in many cases there are no records. They either never existed or were destroyed.

[JewelSong]

vison, I am pretty sure that sperm banks DO keep records of the donors.

As far as cases where siblings inadvertently married - I have heard stories, but not seen any facts about such cases. Do you have some links?