BS: No 'right to choose' this...

Subject: RE: BS: No 'right to choose' this...
From: John MacKenzie
Date: 06 Oct 03 - 06:30 AM

If your DNA is unique surely the answer is to patent it. Then you can legally charge for the use of it.
Giok

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 06 Oct 03 - 07:22 AM

"I'm also sorry you feel that men should not have equal rights because mothers undergo more suffering." Did I say that? Greater suffering might imply a greater measure of sympathy for a woman than for a man in these circumstances, but that's not the same thing at all.

Biology does mean that mathematical equality is not always applicable. I do not think that there are many people who would think that "equality" together with "a right to choose" should ever mean that a man should have the right to insist that a woman pregnant by him should have an abortion.

However so far as I can see there is very little moral difference between that and the consequences of this legal decsiison - a view which appears to be shared by the leading architect of the legislation involved, the Fertility Act, Mary Warnock, when she said in reference to this case: "It's terribly, terribly unsatisfactory, because we didn't envisage the case where the partners would not agree and the woman would desperately want the baby. I think we were at fault there. If the law says the man has the right to prevent even the attempt at having a baby, it's a bad law and should be changed."

Subject: RE: BS: No 'right to choose' this...
From: Dave Bryant
Date: 06 Oct 03 - 10:03 AM

While I feel very sorry for these women, I suppose that I have to try and put myself into the position of the men who are refusing consent.

Artbrooks asks "Is it legal, and enforcable, under UK law for a mother to permanently waive all child support obligations that the father might have?" I don't believe it is. This might have something to do with reasons for the men's refusal to allow the embryos to be implanted.

I have definitely heard of a case where a woman deliberately impregnated herself with sperm out of a used condom without her partner's knowledge or consent. When she was later forced to live on state benefit, the baby's father was still required to pay maintenance for the child, even though he had not had any contact with her since the event and the woman made no secret of the circumstances of her insemmination. I have also heard of similiar cases where lesbian women have received sperm from male friends who were later required to maintain the child.

If the men were now living with new partners, the possibility of having to support a baby born to the previous partner could be a deterrent and many women would feel very distressed that another woman was currently having a child by their current partner.

Perhaps if there was some provision in law for an automatic adoption in such cases - more along the lines of the rules for doner insemmination, at least one of the hurdles could be removed.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 06 Oct 03 - 10:29 AM

It might not be possible "for a mother to permanently waive all child support obligations that the father might have" - the point is the obligation is not to the mother, but to the Child Support Agency.

However I'd be astonished if the British Government doesn't have the right to do that in exceptional circumstances such as this. And they are exceptional circumstances, as Mary Warnock's comments I quoted indicate.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 06 Oct 03 - 11:20 AM

Biology does mean that mathematical equality is not always applicable (McGrath)

Essentially what is happening here is equivalent to a situation where a woman was forced to have an abortion because the father of the child had second thoughts (McGrath)

Exactly because I agree with the essence (not the wording) of the first sentence I disagree with the second.

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: Rt Revd Sir jOhn from Hull
Date: 06 Oct 03 - 10:03 PM

The documentary about this case is been shown on UK TV Channel 4 now.

Subject: RE: BS: No 'right to choose' this...
From: Nerd
Date: 07 Oct 03 - 12:20 AM

McGrath, the UK is not a totalitarian state! If the law currently stands that a man's obligations as a father cannot be waived, the government (whatever organ of government you mean) presumably can't suddenly change that. There are, I think, two routes for change: parliamentary legislation (which would be complex and not guaranteed of success) and action in the courts (same thing). Until this happens, why should the men risk being forced into fatherhood?

I also feel that, by the same analogy, if denying the woman access to these zygotes is tantamount to forced abortion, then giving her access against the man's will is tantamount to her raping him. In both cases, luckily, the TRUE unpleasantness of abortion and rape is avoided.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,john of elsie`s band
Date: 07 Oct 03 - 06:10 AM

Read the article in "The Daily Telegraph" (6-10-03). It gives a reasonable appreciation of the recent decision.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 07 Oct 03 - 07:10 AM

"McGrath, the UK is not a totalitarian state! All states are totalitarian states when it comes down to the wire. There's always an ace up their sleeves they can produce to provide an exemption from any law.

Subject: RE: BS: No 'right to choose' this...
From: katlaughing
Date: 07 Oct 03 - 10:07 AM

I don't know if a person can still do this in any of the states over here, but when my ex didn't pay child support for over one year, I was able to go to court and have his rights revoked, at which point my Rog was able to legally adopt my children.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 07 Oct 03 - 11:06 AM

McGrath,

rereading this thread I still fail to see what you're dricing at except that you would have liked the judge to disregard the law in this particular case. From your first link and from other material I have now read about this case it seems to be extremely clear that the judge despite a lot of sympathy for the women had to follow the law. The law here needed no interpretation for it had been made after long deliberation to cover, among others, this case.

You have started by calling the judgement grotesque, whereas the judgement follows closely the very explicit law. Now you seem to blame the government for not interfering with the law (ace up the sleeve argument). In other situations, you'd be the first to blame the government for doing exactly that. Do I understand you correctly that you'd wish for the law to be broken when you agree with the result? I can't believe that for I'd rather believe you would wish for a correct judgement even in cases in which you'd wish for a different result.

The correct action, as you know, would be to change the law. And my impression is that your emotion in this case has prevented you from thinking about the consequences. Laws are not made for single cases and each change could have consequences soemwhere else.

I can understand your emotion in this particular case, but your argumentation rather reminds me of the Italian self ironic saying:
Piove....governo ladro (freely: it's raining....fucking government)

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: Grab
Date: 07 Oct 03 - 11:23 AM

Kat, it's relatively easy for a woman to do that in the UK. But it's damn near impossible for a man to get rights to see his kids if his ex decides to keep him away (especially if he doesn't want to expose his kids to a fight in court); or for a man to enforce any earlier agreement he may have made with the woman that he takes no part in raising a child and therefore provides no financial support either; or for a man to object to paying to support his ex-wife when she's got a new boyfriend moved in already; or for a man to get custody rights when his wife is demonstrably unable to care for the children; or even for a man to object to the level of financial support he has to provide without losing the right to see his kids.

Not good, really. That's why it's so suprising to see this judgement - whilst it will disappoint the women involved, it supports the men's rights to not be parents against their will, and it upholds the law as it currently stands.

Graham.

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 07 Oct 03 - 06:52 PM

Wolfgang criticises my use of the term "grotesque judgement". True enough, I telescoped two issues when I called it that.   

The first was that, if the law is as the judge ruled it is, then in Mary Warnock's words "It's a bad law", and does not reflect the intentions of the people who drafted it.

And the other was that I find myself in agreement with what Jenni Murray wrote, in that article I linked to earlier concerning the views expressed by the judge in court: "He was wrong to say any criticism of the men's motives in wanting the embryos to be destroyed was unfair. I doubt the putative 'fathers' have a heart between them".

The law may have been explicit, but that is never the end of the story, since all laws have to be looked at in the light of the European Convention on Human Rights. I was surprised that, when viewed in this light, it wasn't decided that the explicit words of the law need some modification, and I still hope it may turn out that, if it goes to a higher court, that will determine this to be the case.

As for the business of the Child Support Agency, I would assume that any set of administrative guidelines drawn up for this agency will explicitly or implicitly have provision for exempting people from being required to make payments in a case where it would clearly be inequitable to pursue them for payment.

Laws may not be made for single cases (though they can be), but single cases very often show when it is necessary for a law to be changed. And once again I agree with what Mary Warnock wrote: "If the law says the man has the right to prevent even the attempt at having a baby, it's a bad law and should be changed."

And I think there speaks someone who would not allow emotion to prevent her from "thinking about the consequences". The change Baroness Warnock calls for would have the object of amending the law so that it was consistent with the aims of the people who drafted it, who thought about it for very long time.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Nerd
Date: 08 Oct 03 - 01:08 AM

Well, ONE OF the people who drafted it. It's quite possible that Lady Warnock is not in the majority among the drafters of the law.

Subject: RE: BS: No 'right to choose' this...
From: Nigel Parsons
Date: 08 Oct 03 - 03:24 AM

Kevin:
"Laws may not be made for single cases (though they can be), but single cases very often show when it is necessary for a law to be changed. And once again I agree with what Mary Warnock wrote: "If the law says the man has the right to prevent even the attempt at having a baby, it's a bad law and should be changed."
As i pointed out before, ova can be frozen unfertilised. The law does not prevent the attempt at having a baby, it prevents the forced participation of a second party! Mary Warnock's comment is a one sided view of the issue. (no pun on 'issue' intended)

Nigel

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 08 Oct 03 - 05:20 AM

Ms. Murray is to be commended for stating very cleary 'the judge in this case...was correct in his strict legal interpretation of the...Act' in her article. But she is much less clear in the remainder of her article. On the one hand, the subtitle 'the law is an ass' gives the impression she is blaming the law and wants it to be changed. On the other hand, nearly all of the article is restricted to a tear-jerker description of the two men's heartlessness and how the women feel.

We all know how it goes: When people split up there are very hurt feelings and each party tells her or his closest friend what an asshole the former partner is. If you talk to the one who is left you always hear his or her you picked a fine time to leave me, Lucille. Let me cite McGrath here approvingly: There is very seldom only black and white. I don't know any of the people involved, so I could even imagine I would agree that the two men involved have no heart if I knew them. But my impression is that Ms. Murray knows no more than I do.

If Ms. Murray wants to discuss the law she does not need to emotionalise the issue for most of the article. If she wants to discuss male heartlessness she does not need to blame the law. I can't help thinking that she does not consider her argument a strong one otherwise she would have stopped at outlining the case without the additional emotionalisation. She uses the emotions to cover her weak points:

At no point she clearly says what she thinks about the problem who will has to pay for the child. Does she want the biological father to pay for a child which has been 'embryoed' long after the relationship to the mother has ended? Could a woman use 'her' 'embryo' even if she could get a child another way (scenario: embryo on ice, relationship too, years later she has a new relationship but both decide to use the old embryo for the old partner now has a lot of money)? If a new law states the biological father has not to pay for what comes from using his embryo, does that not violate basic human rights of the later child for there would be a subset of children without any rights in relation to their biological fathers (once stated to be illegal by the European Court by the way in a case of inheritance)? Could the woman give 'her' embryo to another woman to carry it for her? And so on. Any change of the law has to be considered very carefully. I think in the end of deliberation the present law may turn out to be the best solution. In single cases, there will always be situations in which our hearts go out to someone who quite correctly will not win a court case. Not all possible unfairness can be prevented by laws. Life sometimes is unfair.

What bothers me most in the article is the possessive 'theirs' in the subtitle (the author may not be responsible for the subtitle) and in the article. Imagine a subtitle: 'The law is an ass for stopping two women from using their former partners' embryos'. Why it is so clear that the embryos belong to the women eludes me here. The 'their' in the subtitle very cleverly slants the discussion in one direction.

The one clear question is who can decide what happens with the zygote. And all that talk about 'human beings are never property' is completely irrelevant for if someone can decide what happens with the zygote and this decision can even be the destruction then we talk about property and nothing else (if you don't want that you must preclude the possibility of destruction with crazy consequences, if you think it through).

(1) Is it both like now then we must live with emotional anger in single cases.
(2) Is it the woman alone then we must accept that she even could allow another mother to carry out her embryo (there could be medical reasons for that) with all the consequences and we must then answer the question about who pays and what are the human rights of the later child.
(3) Is it whoever comes first without consent of the other (except for destruction). In this case any clever man fearing monetary consequences will quickly destroy the zygotes after a separation by having them implanted into another woman, but, alas, at the wrong time and so there'll be no fetus.

Once you start thinking about it without letting emotions cloud your judgement I think you'll find that the present law is still a very good compromise.

Wolfgang

Subject: RE: BS: No 'right to choose' this...
From: McGrath of Harlow
Date: 08 Oct 03 - 09:23 AM

I don't feel the law is unfair because I feel angry. That is what is implied in "letting emotions cloud your judgement".

I feel angry because I feel the law is unfair, and is causing something to happen which was never envisaged by those who put it together. That applies both to the Fertility Act and to the Child Support Agency regulations.

As for the three horned dilemma Wolfgang offers I think there would be no difficulty an equitable solution, under which the right to have a fertilised embryo or zygote implanted in the womb of the woman whose egg was involved would always comes first, up to the point at which she relinquished that right.

So far as the monetary side of it is concerned, it seems inequitable that an obligation to reimburse the Child Support Agency for money paid to the mother should fall on a father in these circumstances, and it would be perfectly easy to provide an exemption in such a case.

As for inheritance I would have thought that the right way to treat this would be to extend whatever rules apply in the case of sperm bank donors.

Subject: RE: BS: No 'right to choose' this...
From: NicoleC
Date: 08 Oct 03 - 10:27 AM

In a nutshell Kevin, do you think:

a) the right TO have a child should always supersede the right NOT to have a child

or

b) a woman's rights regarding children always supersede a man's rights?

This about that carefully. Neither is supported by current law in the UK or US. Both could have drastic consequences. As for your example where her right take precedent, that would proclude a man having ANY rights to the zygotes -- because if her rights take precedence she could demand the child back *even after implantation.*

Subject: RE: BS: No 'right to choose' this...
From: Grab
Date: 08 Oct 03 - 01:34 PM

McGrath, my issue with this is that to a large extent this *was* considered by the original committee. That's the very reason why the permission of both parties is required - both are considered equal "owners" of the zygotes, so neither can take any action without the other's approval. The only thing that wasn't considered was the question of what if the couple separate and one of the parties can no longer reproduce.

As far as your suggestion of a solution, that's no solution at all. Under that system, the man has no rights, ever. Even if the man didn't want the child, the woman can go ahead through fertility treatments and have one (and let's face it, a quantity of sperm would not be too difficult to obtain from your husband). The man is then forced to support a child he doesn't want and played no part in producing.

Or to come up with an example for the men, suppose a couple separated and the man entered a stable gay relationship. If he and his partner wish to have children, surrogacy is their only option, and his only option for a child then is to make use of the stored zygotes. Or another similar example would be if one of the women remarried and her new husband is sterile. So examples across both sexes are possible. Why then should it be the woman who automatically gets the "privilege" of overriding the man's wishes over what happens to his reproduction?

Regarding sperm bank donors, some children of donors have tracked down their genetic fathers, sometimes with the assistance of the sperm banks who said at the time that they would keep the information secret. I don't think that's much of an example.

If you think there's something "overridingly important" about women's rights to reproduction, and how her self-esteem suffers without it, by all means say so. I'll then remind you of how "overridingly important" it is to a man that he has a job, and how his self-esteem suffers without it. Either we have equal rights, or we have discrimination. Choose one.

Graham.

Subject: RE: BS: No 'right to choose' this...
From: GUEST,Wolfgang
Date: 08 Oct 03 - 03:16 PM

OK, it's finally clear now, a new law should give the mother more rights than the father according to McGrath.

First, I don't see any reason why this law should be held up at the European Court of Human Rights. This Court is known to pass sentences for equal treatment whenever possible. The reasons given for unequal treatment here are extremely thin.

Second, the comparison to sperm bank danors opens a can of worms. They have been difficult to trace (in the old times) for some agencies even mixed the sperms to make tracing difficult but whenever a donor has been traced the question of paternal rights (a problem discussed among lesbian couples), payment and inheritance comes up. These rights cannot be waived by the mother or the state for nobody can waive the rights of a third party who has not (yet) been asked. At latest when the child gets 18 years old, she can sue whatever the mother has said or written before that age. The European Court would rightly not allow that some people (these children) have less rights than others.

Wolfgang