Man wants no more children with his wife

Embryo case/husband's evidence:  The estranged husband of a woman who is seeking to have implanted in her womb three embryos which were frozen after fertilisation with his sperm four years ago has told the High Court he does not want to have any more children with his wife.

"I have a right to say no, it's a human right," the father of two (44) said. He had no intention of having more children with his wife because they were separated.

When he and his wife undertook IVF treatment from late 2001 into 2002, the intention was to have a brother or sister for their son, who was born naturally in 1997, as neither of them wished him to be an only child, he said.

There were difficulties after that first birth, including post-natal depression, but they had decided to give it "one more go" and opted for IVF. They both accepted there was a risk of multiple births when they agreed to have three embryos implanted in his wife's uterus in early 2002.

He believed the three remaining embryos were only to be used if his wife did not become pregnant following the first implantation. When she did become pregnant in February 2002 after implantation, they never discussed further children, he said.

When that child, their second, was born in September 2002, "that was it" because he had reached the age of 40, he said. They came to that decision when she was pregnant with that child.

He was giving evidence in the action by his wife aimed at securing a court order which would result in the implantation of the three frozen embryos in her.

Evidence relating to the first issue in the action - whether there was a consent by the husband to the implantation of the frozen embryos in her uterus and if any such consent was irrevocable in light of his family rights and the couple's separation - concluded yesterday after which the parties made legal submissions.

Those submissions are expected to conclude today after which Mr Justice Brian McGovern will reserve for a short time his decision on the contract issue. If he finds there was an irrevocable contract, that is an end to the case.

If he rejects the woman's claims on consent, the case will resume on July 17th or 18th to address public law issues and, perhaps, constitutional issues relating to when human life begins and the nature of an embryo.

Earlier yesterday, the husband said his marriage effectively broke up in 2002 and the couple were involved in family law proceedings which had not yet concluded. There was an ongoing battle relating to access, he said. He had joint custody of the children but "it's not really joint custody". He did maintain them.

When he signed a document at the Sims clinic in January 2002, headed Husband's Consent, he understood this meant he would be the father of a child conceived by IVF treatment. That document involved consenting to his wife undergoing "the course of treatment outlined above" and his accepting he would be the legal father of any "resulting child". He agreed he also signed a consent for the freezing of the embryos.

He acknowledged there was nothing on the document to say he could withdraw that consent.

Cross-examined by Inge Clissman SC, for his wife, he accepted that embryos were "deserving of respect" related to careful storage and he believed they should be kept indefinitely in storage. He accepted that if a child or children were born following implantation, his wife would be substantially responsible for that offspring and he would be someone who would "contribute". He was unaware of the legal implications for him if the embryos were donated to others.

In submissions for the husband, John Rogers SC argued the consent document related only to fertilisation.

If the court found there was a consent to implantation, it should rule the husband could withdraw or revoke that consent in light of his right to determine the size of his family and how his family life would proceed. Mr Rogers said the wife's case was that she was entitled to determine what children she had but he was not.

In her submissions, Ms Clissman said the consent document showed the husband knew the IVF treatment was being done with a view to the birth of a child. It made no sense to look at that document in segments as Mr Rogers advocated.

The point of the mixing of eggs and sperm was to create a pregnancy. Her client regarded the embryos in the same way as her children and it was not appropriate for her husband to withdraw his consent.