Eight frozen embryos will remain in cold storage for the foreseeable future after a senior family law judge granted a stay on their destruction yesterday. But while the embryos have been temporarily saved, the two women they "belong" to lost their unprecedented battle to use them to conceive and bear children.
Six are claimed by Natallie Evans and two to Lorraine Hadley. Each woman wants to use her embryos to bear a child.
But in each case the man whose sperm was mixed with his partner's eggs to produce the embryos has changed his mind and declined the opportunity to father any resulting child. Both relationships have broken down and the men have asked for the embryos to be destroyed.
The Human Fertilisation and Embryology Act 1990, which governs IVF treatment, states that the consent of both partners is required for the storage and use of embryos. Either partner can withdraw consent at any time, which means the embryos must be destroyed.
The women argued that the law breached their rights under the Human Rights Act, which came into force in October 2000, and guarantees a right to respect for private and family life.
They won the sympathy of Mr Justice Wall at the high court in London, but not their case. The judge said the law was clear. The legislation had been the product of extensive consultation before it was enacted. "If the law is to be changed in this area, it is in my view for parliament to do so, not the judiciary."
The judge added: "The act entitles a man in the position of these men to say he does not want to become the father of a child by a woman from whom he has separated, and with whom he no longer has anything in common apart from the frozen embryos."
He said the men were also deserving of sympathy and any criticism of their motives was unfair.
The judge refused the women permission to appeal but they can still ask the court of appeal to hear their case. While they decide with their lawyers whether to launch an appeal, the judge ordered that the embryos should remain frozen.
The case, with has provoked an impassioned public debate, is particularly poignant because if the embryos are destroyed, with them will go any chance for Ms Evans, 31, to have a child of her own. Her ovaries, which contained pre-cancerous cells, were removed after the eggs were taken for the treatment.
"She is desperate to have the baby she has always dreamed of," her solicitor, Muiris Lyons, told reporters as she stood silently by his side outside court. "To say that Natallie is disappointed would be an understatement. She is devastated. For her these embryos are her babies. Naturally Lorraine is also very upset and disappointed at the decision."
Ms Evans, from Trowbridge, Wiltshire, met her former partner, Howard Johnston, in 1999. They lived together until last year when he ended the relationship.
She claims that Mr Johnston led her to believe that he would never stop her using the embryos because he knew how important having a child was to her.
Ms Hadley, 38, of Sandwell, West Midlands, was married to Wayne Hadley and underwent an unsuccessful course of treatment with him until he left her for another woman in 2000.
She has a 17-year-old daughter from a previous relationship, but a medical condition has since left her with fertility problems.
When they separated, Mr Hadley agreed the two embryos should remain in storage, but later changed his mind.
Ms Evans and Ms Hadley had argued that their former partners' power constituted an unwarranted "male veto" which infringed their rights under the European convention on human rights.
Mr Justice Wall said these rights, including respect for family and private life, were also enjoyed by Mr Johnston and Mr Hadley who had an equal right to have them respected.
The judge said even if the men had given clear assurances the embryos could be used whatever happened in the relationship, those promises could not override the provisions of the act, which allowed consent to be withdrawn at any time.
In an application for permission to take the case to the court of appeal, Robin Tolson QC, for the women, told the judge: "Miss Evans asks me to say that, although you found the destruction of these embryos to be required by law, it would not be just to do so and, even if Mr Johnston is legally entitled to have them destroyed, it would not be morally right to do so."
Mr Johnston's solicitor, James Grigg, said his client would have legal responsibilities for any child born as a result of the IVF treatment. Mr Johnston hoped Ms Evans' wish for a child could be granted in some other way, perhaps by using donor eggs.
Suzi Leather, chairman of the Human Fertilisation and Embryology Authority, said: "It is very important that people who are going for fertility treatment understand the law which governs what happens to embryos in storage."
Sue Avery, of the Association of Clinical Embryologists, said: "The high court arrived at the only rational decision that could have been made under the existing law. If the court had arrived at any other decision, it would have negated the rights of the male partners which would have been an extremely dangerous precedent to set.
"At the time of treatment, both partners would have been informed by the clinic that embryos cannot be used for any purpose without the consent of both parties."
