Two women today lost a high court battle to have children from frozen embryos they had created with their former partners.
Natallie Evans and Lorraine Hadley each have a number of embryos in storage after undergoing IVF treatment with their former partners. The two men objected to the embryos being used to create children now that the relationships had broken down.
Today a judge rejected a challenge by Ms Evans and Ms Hadley to the Human Fertilisation and Embryology Act, which states that embryos must be destroyed unless both parties consent to storage and use.
The judge in the case, Mr Justice Wall, refused the women leave to appeal and said they should apply to the court of appeal for leave. He granted a stay on his order in the meantime, and the two clinics which are storing the embryos undertook not to destroy them before any possible appeal has been resolved.
The judge said: "This litigation has gone on for a long time and has caused the parties a great deal of distress and expense. In my judgment it is time that it came to an end."
Ms Evans' solicitor, Muiris Lyons, said: "To say that Natallie is disappointed would be an understatement. She is absolutely devastated. Her frozen embryos represented her last chance to have a child of her own. We will now have to consider whether or not to appeal."
On behalf of Mrs Hadley, the solicitor said: "Naturally, Lorraine is very upset and disappointed at the decision. We will now consider the merits of an appeal on her behalf."
The judge heard in June and July that it was Ms Evans' last chance to give birth because her ovaries were removed after they were found to contain pre-cancerous cells.
She met her former partner, Howard Johnston, in 1999 and they lived together until last year, when he ended the relationship. Ms Evans, 31, from Trowbridge, Wiltshire, claims that Mr Johnston led her to believe that he would never stop her using the embryos as he knew how important having a child was to her.
Ms Hadley, 38, from Sandwell, West Midlands, was married to Wayne Hadley until he left her for another woman in 2000. When they separated, Mr Hadley agreed the embryos should remain in storage but later changed his mind.
In a statement issued by his solicitors, Mr Hadley said: "My legal team presented a very compelling and persuasive case on my behalf and I am delighted that those arguments prevail. At the same time, I cannot dismiss the anguish that is likely to be caused to Lorraine as a result of the ruling of Mr Justice Wall.
"I have no ill-feeling towards Lorraine and no desire to cause her any further distress. I hope that the matter is now concluded, although I anticipate that given the complexity, and the fact that the case is regarded as a test case, that an appeal may be lodged."
The British Medical Association (BMA) said it believed the right decision had been made.
Dr Michael Wilks, chairman of the BMA's ethics committee, said: "While empathising with the situation of both women, the BMA feels it would be a very dangerous step to change the rules on consent retrospectively.
"The couples clearly agreed that the embryos could only be used with the go-ahead of both parties. Consent was given on the basis that it could be withdrawn or varied at any time up until the embryos were used in treatment," he said.
Mr Justice Wall said both women had argued that the court had the power to override the withdrawal of their former partners' consent and to permit them to use the embryos.
"This is an area where parliament has legislated very clearly and fully, following an expert report, a consultation process and a white paper. If the law is to be changed in this area, it is in my view for parliament to do so, not the judiciary," he said. He said one of the most important requirements under the act, which all clinics must comply with, is consent to use the embryos which in these two cases specified they were for the partners "together".
The judge said this was the main reason why the women's claims must fail.
Mr Justice Wall said Mr Johnston and Mr Hadley had a lawful and unconditional right to withdraw their consent both to the transfer of the embryos and to their continued storage. Ms Evans and Ms Hadley had argued that this right constituted an unwarranted "male veto" which infringed their rights under the European Convention.
Mr Justice Wall said these rights, including family and private life, are also enjoyed by Mr Johnston and Mr Hadley who have an equal right to have them respected.
The judge said even if the men had given clear assurances that the embryos could be used whatever happened in the relationship, these promises could not override the provisions of the act.
