Justice, Convention and Anecdote: Evans and the Right to Become a Mother

The Evans decisions are important as the first major European contributions to the growing global legal debate on frozen pre-embryo disputes. They are more important still for what they say about the structure of the Western law of reproduction. In this article, I want to explore this small body of case law, not to present a comprehensive analysis of any country's law on this issue, but to use judicial holdings to divine what I think is the basic structure of Western legal thought on these issues. First, I want to show that the “conflict of rights” model is the basic foundation for the decided pre-embryo cases. There are two variations on that model. In the UK, the Evans decisions suggest an “equality” theory: male and female rights as regards the dispute are absolutely equivalent and, therefore, decisions regarding the pre-embryo must be made on an equal basis — a mutual consent requirement must be adhered to. On the other hand, in America and Israel, the courts have adopted a clear hierarchy of rights as between male and female. Next, I want to suggest that neither of these theories of pre-embryo disputes really “fit” the pre-embryo problem, or indeed really explain decision-making around it. Finally, I will set out my theory of how pre-embryo disputes are best understood. I want to argue that pre-embryo cases show a pattern in the law of reproduction: an attempt to mimic the “natural” order of the reproductive process.