The Sunday Times Magazine • 25cases involving embryos implanted without the true
consent of the father have made recent legal headlines.
In 2018 a German man was forced to pay child support
for a son who was born after his ex-wife forged his
signature on medical consent forms. Karl and Inge had
IVF treatment during their marriage with the intention
of having their embryos implanted later in life. (They
are known only by their first names due to privacy
restrictions in the German courts.) Following their
divorce Inge had two rounds of IVF using fraudulent
consent forms, leading to one successful pregnancy.
Karl took legal action at Munich’s medical malpractice
court in an attempt to get the fertility clinic to pay for
his unwanted son’s child support, but the judge found
that Karl had not been sufficiently clear when he called
the clinic to revoke his consent for the embryos to be
used, and the clinic had no reason to doubt that his
signature was real.
There have also been several legal challenges brought
by women determined to use embryos against their
former partners’ wishes. In 2017 the New York
Supreme Court granted 53-year-old Bat-El Yishay
Finklestein custody of the sole remaining embryo she
shared with her ex-husband, Yoram Finklestein, on
the grounds that it was her “last chance to become
a biological parent”. But a year later the New York
Supreme Court Appellate Division ruled that the
embryo should be destroyed. In 2020 the Arizona
Supreme Court ruled that 39-year-old Ruby Torres
could not use her embryos to have a baby against her
ex-husband’s will, even though she’d had them frozen
before undergoing cancer treatment that left her
infertile. The embryos were donated for other couples
to use because of what was stipulated in the original
agreement with the fertility clinic. The knowledge that
the possibility of motherhood exists in a freezer but can
never legally be made a reality must be a bitter pill to
swallow for women who are desperate to have a child.
“I feel immense empathy for anyone who wants a
baby and knows there’s an embryo frozen that could be
their baby, and has to make a decision not to give that
embryo a chance of life, and — worse still — to have to
destroy it,” says the grief counsellor Jenni Thomas, who
specialises in helping patients deal with the loss of a
baby, child or parent. “It’s very much a bereavement.
It’s an enormously difficult thing to do.”
Thomas has come across cases like this in her own
practice. “It’s very complicated, very problematic,”
she says. “When women undertake fertility treatment,
I don’t think it’s ever fully explained to them how
attached to the embryo they might feel. Not to be
allowed an opportunity to give another embryo a
chance — that’s a very big loss. It has the same
implications that all baby losses have — enormous
yearning, a physical longing to be pregnant and have
a child. Women get ill over this.”O
nline parenting forums such as Mumsnet and
Netmums are littered with threads full of the
anguish of women who want to try for more
children when their partners do not. It’s a
scenario in which there can be no compromise,
no halfway meeting point — a zero-sum game.
The battle for who has control over reproductive
choices can break up relationships. But when it comes
to couples who have already conceived a child — an
embryo in storage — that heartbreak can be even more
pronounced. Thomas says that women are more likely
to think of embryos as babies than men. “And when youthink about what women have to go
through in IVF to get to the embryo
stage compared with men, I don’t think
you can underestimate the enormity of
a woman’s attachment to her embryos.”
The recent legal cases arising from
forged signatures on consent forms
have not led to any changes in the law in
England and Wales. “IVF is very tightly
regulated in the UK and there’s a
significant body of law and guidance
around the way clinics operate,”
Lawford Davies says. “When patients
first attend a clinic to register for
treatment they will be asked to provide
identifying information such as a
driving licence or a passport. At
subsequent appointments, the clinics
need to be satisfied that they are the
same people. That might sound a little
odd, but if you have embryos or gametes in storage,
then it could be several years between your first
appointment and your next. It’s particularly important
if there’s that big gap that the clinics check who’s who.
But it’s not a legal requirement that patients complete
their consent forms in the clinic.”
Clinics are beginning to introduce the kind of
electronic consent platforms that banking apps use,
incorporating authentication tools such as face
recognition and digital fingerprint scans to reduce
the chance of forgery. “There’s a tension between
making sure patients are who they say they are but
also maintaining a doctor-patient relationship that’s
based on trust and a level of comfort in talking about
what’s an inherently sensitive, personal thing. If you’re
suggesting that your patients might be dishonest
every time you meet with them, that’s a bad place to
start in engendering that sort of relationship.”
Chris, however, is in favour of more regulation. “Every
single treatment should be physically approved by both
partners. Clinics have a big responsibility; they shouldn’t
be just commercially driven, they should have the right
to say no, we’re not going to approve the treatment, if
they interview two parents and think they are not
aligned on this. But they will never do that because they
want the money. They should make sure that under no
circumstances can one parent come on their own.”
Chris and Eva share custody of their children and
have managed to forge a functional relationship as
divorced parents. “It’s OK. We have a mutual love of
our children,” Chris says, shrugging. “Our friends say
it’s amazing that two parents take equal responsibility
and work as a team. But they don’t see the dark
underbelly, which we tend to keep hidden.”
In an age when technology is giving more people than
ever the opportunity to become parents, Chris hopes
his story will prompt the conversations nobody wants
to have when their focus is purely on conceiving. “IVF is
more or less a way of life for people now. I have nothing
but positive views of it — I just think it comes with a
huge responsibility that people often don’t understand.
I want people to know that when you play God, as we
somehow do, it comes with great responsibility.”
He concedes that neither he nor Eva took that
responsibility seriously enough. “She did something
really, really wrong, but it takes two to tango. Maybe
it could have been avoided if our relationship had
been better and we’d had the right kinds of discussions
up front.” ■“NOT TO HAVE THE
OPPORTUNITY TO
GIVE ANOTHER
EMBRYO A CHANCE
— THAT’S A VERY
BIG LOSS. WOMEN
GET ILL OVER THIS”
Cancer treatment
left Ruby Torres
infertile, but a US
court ruled she
couldn’t use her
frozen embryos
against her
ex-husband’s willGETTY IMAGES
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