Whose embryo is it anyway? A critique of Evans v Amicus Healthcare [2003] EWHC 2161 (Fam)

In this paper I critique aspects of the law relating to in vitro fertilisation (‘IVF’) treatment in the United Kingdom. Focusing on the case of Evans v Amicus Healthcare Ltd [2003] EWHC 2161 (Fam), where two women sought to have their embryos transferred after the consent of their partners had been withdrawn, I discuss the legal constructions applied to embryos and participants to IVF treatment. In the Evans case the Judge’s decision to reject the women’s claim was popularly accepted as morally, ethically and legally correct. I argue, however, that because the treatment of embryos is founded upon a constructed (and changeable) division between a human subject and an object of property, there is no greater coherence or legitimacy in the current law than would have been the case had the claimants’ submissions been accepted. I then discuss how a presumption of equal rights over the embryo can, in practice, consistently prejudice the interests of women despite an appearance of neutrality. Drawing on the work of Michel Foucault and Judith Butler I go on to consider the ways in which law manages to appear fair and neutral despite its internal inconsistencies. Finally, I explore some alternatives to the current law