A Hard Case
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14 April, 2007 11:00
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There’s a saying amongst lawyers that hard cases make bad law. This saying is based on the understanding that that, it some cases, a correct application of the law will produce a result that seems unjust. Go high enough up the court structure, and you usually reach a court that doesn’t have to follow the decisions in earlier cases (even if it usually does). If this allows its decision to be influenced but the result it wishes to achieve (i.e. which side it wants to win) rather than the result that a conventional application of law may achieve, it may achieve a just result in that case but set a bad precedent for future cases. This week, the European Court of Human Rights has given judgement in a real toughie.
The case concerned Natalie Evans, a British woman rendered infertile because of treatment for ovarian cancer. She and her former partner, a man named Howard Johnston, underwent IVF treatment, resulting in 6 embryos being frozen. Before they could be implanted, their relationship broke up, and Mr Johnston withdrew his consent to the embryos being used. In the UK, that meant that they had to be destroyed. Ms Evans didn’t want this to happen, and took her arguments through the court system. Having lost in her own country, she went to Strasbourg. She lost there in a first hearing, appealed to what is known as the “Grand Chamber”. This week, she learnt that she had lost again.
There has been almost unanimous sympathy expressed for Ms Evans. How could there not be? Illness left her with one chance of bearing a child genetically her own, which chance has been taken from her by the decision of her former partner. But most of the comment has also concluded that, hard case though it may be, the decision made by the Strasbourg court was the correct one.
It is important to understand the limited function of the European Court of Human Rights. The European Court of Human Rights exists to decide whether rights under the European Convention on Human Rights have been infringed. But not all rights are absolute. The right not to be tortured is an example of an absolute right. But other rights need to be balanced against the rights of others. Where countries make a reasonable attempt to strike a fair balance between competing rights (such as Ms Evans and Mr Johnston’s respective rights to become parents or not), the Strasbourg court gives them a wide “margin of appreciation”. It respects the right of elected legislatures to balance these interests.
I believe that the commentators were correct, in that a legally correct decision was made. The whole area of IVF and other such treatments is laden with moral and ethical judgements that are far better suited to decision by elected legislators than by judges deciding a particular case. Although one may disagree with the balance struck by the law, it’s hard to argue that the UK Parliament had not made a reasonable stab at addressing the issues and balancing the competing rights of those involved.
Looking beyond sympathy for Ms Evans predicament, was justice done? This is where I am uneasy about the general feeling that the result was morally, as well as legally correct.
Numerous factors suggest that the answer should be, yes, that justice was done.
It is hard to argue with Mr Johnston’s assertion that he should decide if, when and with whom he should become a parent. There are enough feckless parents around for the World not to need another one. Ms Evans said that she would not seek financial support from Mr Johnston, which means that, unless she’s a wealthy woman, she’d be seeking it from the good taxpayers of the UK – who might feel they have better things on which to spend their money. Brutal though it may sound to her, there’s more to life than motherhood. The need for mutual consent was explained to both Ms Evans and Mr Johnston before they started the IVF process. To go ahead with implantation without Mr Johnston’s consent could be said to be to going back on the understanding on which he started the process.
Why, then, am I unconvinced that justice has been done?
I think the answer is, because the chance of motherhood has been taken from Ms Evans not because of her illness, but because of the decision of one man, albeit acquiesced in (quite properly in law, I believe) by the majority of the judges who have heard her appeals.
It is not cancer that has taken away her chance at motherhood – cancer simply put her in the position in which her chances were dependent on IVF. It is Mr Johnston.
Early in Ms Evans’ journey through the courts, Mr Johnston kept a low profile. Later on, he decided not to. He has made comments to the press. The evening before I am writing this piece, he was interviewed on Radio 4’s PM programme. Throughout his media appearances, he has expressed sympathy for Ms Evans. Despite this, in his Radio 4 interview, he answered that he had never considered agreeing to allow the embryos to be implanted after his relationship with Ms Evans broke up. He claimed that Ms Evans was being less than truthful about her desire for a genetic child, as she had, during their relationship, said she would be open to other possibilities (donated eggs, adoption). He, and indeed the Strasbourg judges, stressed that these options were still open to Ms Evans.
It strikes me as highly condescending to Ms Evans to seek to diminish her grief by advising her of alternative routes that she has available. I have my views about the morals and ethics of this sort of thing. But it is not for me, nor anyone else, to impose my morals or ethics on Ms Evans. Indeed, even if she were to share them 100% she might feel emotionally unable to consider other options. Just as the decision whether or not to become a parent is an intensely personal one, so is answering the question of whether or not one is up to carrying a donated egg, or adopting, or any other option that Ms Evans might have.
You won’t hear many quibbles from me about equal treatment for men and women in law, but it is a simple fact that the biology of child bearing makes absolute equality impossible. Someone must have the last say. Biology dictates that the most sensible (or at least the least unsatisfactory) solution is for a woman to have the final say. But in this case, the law says, in effect, that it is the man. Had Ms Evans and Mr Johnston conceived naturally, he could not have obliged Ms Evans to abort her child no matter how much he wished not to father it. This is not a piece on the morality of abortion, the fact is that it does exist and it does take place. That may have been unfair on him, but any more unfair than the position Ms Evans now finds herself in?
A further concern points to this being the least bad situation. It may be hard to imagine the level of spite that would cause a man to deny consent to a woman in this situation as an act of vengeance for some real or perceived wrong in their relationship, but I doubt that anyone who has practised family law would think it beyond the realms of possibility. I do not say that this is Mr Johnston’s motive, but it is certainly possible that, in other cases, it could feature.
Sometimes even the best law can seem an ass.
The case concerned Natalie Evans, a British woman rendered infertile because of treatment for ovarian cancer. She and her former partner, a man named Howard Johnston, underwent IVF treatment, resulting in 6 embryos being frozen. Before they could be implanted, their relationship broke up, and Mr Johnston withdrew his consent to the embryos being used. In the UK, that meant that they had to be destroyed. Ms Evans didn’t want this to happen, and took her arguments through the court system. Having lost in her own country, she went to Strasbourg. She lost there in a first hearing, appealed to what is known as the “Grand Chamber”. This week, she learnt that she had lost again.
There has been almost unanimous sympathy expressed for Ms Evans. How could there not be? Illness left her with one chance of bearing a child genetically her own, which chance has been taken from her by the decision of her former partner. But most of the comment has also concluded that, hard case though it may be, the decision made by the Strasbourg court was the correct one.
It is important to understand the limited function of the European Court of Human Rights. The European Court of Human Rights exists to decide whether rights under the European Convention on Human Rights have been infringed. But not all rights are absolute. The right not to be tortured is an example of an absolute right. But other rights need to be balanced against the rights of others. Where countries make a reasonable attempt to strike a fair balance between competing rights (such as Ms Evans and Mr Johnston’s respective rights to become parents or not), the Strasbourg court gives them a wide “margin of appreciation”. It respects the right of elected legislatures to balance these interests.
I believe that the commentators were correct, in that a legally correct decision was made. The whole area of IVF and other such treatments is laden with moral and ethical judgements that are far better suited to decision by elected legislators than by judges deciding a particular case. Although one may disagree with the balance struck by the law, it’s hard to argue that the UK Parliament had not made a reasonable stab at addressing the issues and balancing the competing rights of those involved.
Looking beyond sympathy for Ms Evans predicament, was justice done? This is where I am uneasy about the general feeling that the result was morally, as well as legally correct.
Numerous factors suggest that the answer should be, yes, that justice was done.
It is hard to argue with Mr Johnston’s assertion that he should decide if, when and with whom he should become a parent. There are enough feckless parents around for the World not to need another one. Ms Evans said that she would not seek financial support from Mr Johnston, which means that, unless she’s a wealthy woman, she’d be seeking it from the good taxpayers of the UK – who might feel they have better things on which to spend their money. Brutal though it may sound to her, there’s more to life than motherhood. The need for mutual consent was explained to both Ms Evans and Mr Johnston before they started the IVF process. To go ahead with implantation without Mr Johnston’s consent could be said to be to going back on the understanding on which he started the process.
Why, then, am I unconvinced that justice has been done?
I think the answer is, because the chance of motherhood has been taken from Ms Evans not because of her illness, but because of the decision of one man, albeit acquiesced in (quite properly in law, I believe) by the majority of the judges who have heard her appeals.
It is not cancer that has taken away her chance at motherhood – cancer simply put her in the position in which her chances were dependent on IVF. It is Mr Johnston.
Early in Ms Evans’ journey through the courts, Mr Johnston kept a low profile. Later on, he decided not to. He has made comments to the press. The evening before I am writing this piece, he was interviewed on Radio 4’s PM programme. Throughout his media appearances, he has expressed sympathy for Ms Evans. Despite this, in his Radio 4 interview, he answered that he had never considered agreeing to allow the embryos to be implanted after his relationship with Ms Evans broke up. He claimed that Ms Evans was being less than truthful about her desire for a genetic child, as she had, during their relationship, said she would be open to other possibilities (donated eggs, adoption). He, and indeed the Strasbourg judges, stressed that these options were still open to Ms Evans.
It strikes me as highly condescending to Ms Evans to seek to diminish her grief by advising her of alternative routes that she has available. I have my views about the morals and ethics of this sort of thing. But it is not for me, nor anyone else, to impose my morals or ethics on Ms Evans. Indeed, even if she were to share them 100% she might feel emotionally unable to consider other options. Just as the decision whether or not to become a parent is an intensely personal one, so is answering the question of whether or not one is up to carrying a donated egg, or adopting, or any other option that Ms Evans might have.
You won’t hear many quibbles from me about equal treatment for men and women in law, but it is a simple fact that the biology of child bearing makes absolute equality impossible. Someone must have the last say. Biology dictates that the most sensible (or at least the least unsatisfactory) solution is for a woman to have the final say. But in this case, the law says, in effect, that it is the man. Had Ms Evans and Mr Johnston conceived naturally, he could not have obliged Ms Evans to abort her child no matter how much he wished not to father it. This is not a piece on the morality of abortion, the fact is that it does exist and it does take place. That may have been unfair on him, but any more unfair than the position Ms Evans now finds herself in?
A further concern points to this being the least bad situation. It may be hard to imagine the level of spite that would cause a man to deny consent to a woman in this situation as an act of vengeance for some real or perceived wrong in their relationship, but I doubt that anyone who has practised family law would think it beyond the realms of possibility. I do not say that this is Mr Johnston’s motive, but it is certainly possible that, in other cases, it could feature.
Sometimes even the best law can seem an ass.
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