Reliance and representations/promises in frozen embryo disputes: UK and Israeli approaches to estoppel

Introduction

Deciding whose interests should prevail in frozen embryos disputes in IVF has been described as beset with ‘profound uncertainty’, ¹ ‘extremely difficult’ ² and even ‘nigh-impossible’. ³ Providing one gamete provider the decision over whether or not to become a parent/dispose of the embryo(s) in the way he/she wishes denies the other gamete provider the opportunity to exercise an equivalent decision. In the face of such hard facts, estoppel, it is argued, can provide a doctrinally robust response due to its flexibility in deeming whether a person relied upon representation(s) or promise(s) made. This flexibility was referred to by Lord Denning, ⁴ one of the doctrine’s champions, and originates from its roots in equity, ⁵ reflecting ‘the moral values which underlie the private law concept of estoppel’. ⁶ This flexible and equitable legacy has also left its imprint in the United States ⁷ and Israel. ⁸ The hurdle for the application of estoppel’s equitable principles to frozen embryo disputes is Schedule 3 of the Human Fertilisation and Embryology Act 1990, as authoritatively shown by the Evans litigation. ⁹ This article provides a critique to this current UK status quo. An alternative resolution to similar facts in a frozen embryo dispute considering estoppel was provided by Supreme Court of Israel in Nahmani v. Nahmani. ¹⁰ The Israeli Court’s position, it is argued, leads to a more favourable outcome due to its scope to take into consideration the reliance on representations/promises made in the context of estoppel. The facts of Evans and Nahmani will be laid out in the following sections.

One of the first advocates for the use of estoppel in settling frozen embryo disputes lucidly explained why the estoppel route could lead to a just solution:

One fact is of vital importance…the spouse who opposes implantation wanted a child at one time and submitted to the IVF process with that end in mind. The two spouses once agreed on this issue and initiated the IVF procedure in reliance on that mutual wish. Given this background, the greater injustice would be to deny implantation to the spouse who detrimentally relied on the other’s words and conduct. ¹¹

Nahmani v. Nahmani

Mr and Ms Nahmani were married in 1984 and 3 years later she required a hysterectomy due to an unnamed ‘dangerous illness’. ¹² It was arranged with the surgeon that her ovaries would not be removed but moved aside ‘in such a way that they would not be damaged by the radiation that was to follow’. ¹³ In 1988, as a precursor to IVF, the couple sought to identify a potential surrogate mother. ¹⁴ Due to legal restrictions in Israel, this search led them to the United States where they succeeded in finding a potential surrogate mother after 3 years, following significant legal ¹⁵ and economic obstacles. ¹⁶ Immediately following this, IVF treatment was pursued, and 11 embryos were created using Ms Nahmani’s eggs and Mr Nahmani’s sperm ¹⁷ and stored at Assuta Hospital in Israel. ¹⁸ He subsequently left her and went to live with another woman, who bore him a child. ¹⁹ Ms Nahmani applied to Assuta Hospital for possession of the embryos for the purpose of the surrogacy procedure in the United States, but Mr Nahmani opposed this. ²⁰ A majority of seven of the Supreme Court Justices (with four dissenting) reversed the same Court’s judgment ²¹ in a second hearing to allow Ms Nahmani to implant the embryos. The Court found that the husband was estopped from opposing the implantation of the embryos into a surrogate by promissory estoppel.

Evans v. Amicus Healthcare Ltd

The parties, Ms Evans and her partner, Mr Johnston, embarked on fertility treatment together at the Bath Assisted Conception Clinic ²² (‘the clinic’) in July 2000. ²³ Preliminary tests revealed that Ms Evans had pre-cancerous tumours in both ovaries, necessitating their removal. ²⁴ This was disclosed to both parties in a consultation along with the information that it was first possible to extract some eggs for IVF treatment. ²⁵ Both parties signed a mandatory consent form for the treatment which advised that consent to further treatment using any resultant embryos could be withdrawn at any time before they were implanted in Ms Evans’ uterus. ²⁶ In November 2001, 11 eggs were retrieved from Ms Evans, out of which six embryos were subsequently created and placed in frozen storage. ²⁷ Ms Evans was told she would have to wait at least 2 years before attempting to implant any of the embryos in her uterus. ²⁸ In May 2002, the relationship between Ms Evans and Mr Johnston broke down. ²⁹ Mr Johnston communicated to the clinic in July 2002 that he no longer consented to the use or continued storage of the embryos. ³⁰ The clinic considered that by law it had to respect the withdrawal of his consent ³¹ thus leading to the destruction of the embryos. Ms Evans then issued proceedings to preserve the embryos for implantation, and in a directions hearing it was decided that the clinic should consign the embryos to cryostorage pending a legal judgment. ³²

The key legal issue in Evans: Consent

Estoppel was raised in the High Court ³³ and Court of Appeal ³⁴ in Evans where it was contended that Mr Johnston made assurances which dissuaded Ms Evans from seeking alternative ways of achieving a pregnancy using her eggs. ³⁵ The central legal issue in Evans was whether the original consents to the use of the embryos operated to enable the clinic to treat Ms Evans for IVF after Mr Johnston’s withdrawal of consent. ³⁶ The primary reason that Ms Evans was not able to rely on arguments that she had a right to use ³⁷ the embryos or that Mr Johnston should be estopped from withdrawing his consent ³⁸ was due to the consent provisions of the 1990 Act. In contrast, in Nahmani, the judges faced no such statutory bar in considering estoppel. The statutory requirements concerning variation of consent are contained in paragraph 4 of Schedule 3 of the 1990 Act, ³⁹ clarifying that consent can be varied prior to the ‘use’ of an embryo in IVF. Following the withdrawal of the man’s consent, paragraph 6(3) of Schedule 3 of the 1990 Act ⁴⁰ pertained to the effectiveness of gamete providers’ consent to the use of the embryo(s). This provision clearly required the consent of both parties concerning the use of the embryos. Ms Evans and Mr Johnston had initially agreed that the embryos were to be used to provide ‘treatment together’ for both parties ⁴¹ and signed consent forms to allow for the use of their gametes for fertilization. ⁴² On Mr Johnston’s form he consented to ‘the use of my sperm to fertilise egg(s) in vitro and to the use of embryo(s) developed from these egg(s)…in the treatment of myself together with (Ms Evans)’. ⁴³ On the question of whether Mr Johnston could revoke his consent, the clinic’s consent form stated, ‘Upon the cessation of our domestic relationship by divorce or legal separation we understand that the storage and use of the embryos must be reviewed’. ⁴⁴ Wall J noted that used of the word ‘review’ was ambiguous and not consistent with the provisions quoted from the 1990 Act above. ⁴⁵ A Human Fertilisation and Embryology Authority (HFEA) form, signed by both parties was more faithful to the 1990 Act, which stated in bold: ‘You may vary the terms of this consent or withdraw this consent at any time except in relation to eggs or embryos which have already been used’. ⁴⁶

Wall J considered that the relationship breakdown of the gamete providers demonstrated they were not pursuing treatment together. ⁴⁷ He also considered case law discussing ‘treatment together’ ⁴⁸ to decide that paragraph 6(3) required ‘effective consent’ by each person whose gametes were used to create the frozen embryos, which means a consent that, according to paragraph 1(1) of Schedule 3, has not been withdrawn, and can only be effective at the point at which the embryos are transferred to the womb. ⁴⁹ Therefore, the situation in which Ms Evans sought the transferral of the stored embryos to herself, without the consent of Mr Johnston, could not constitute both parties receiving ‘treatment together’. ⁵⁰ The Court of Appeal affirmed the requirement for ongoing consent. ⁵¹ The European Court of Human Rights also followed suit, ⁵² though notably estoppel was not raised at the Strasbourg Court.

Analysis of estoppel in Evans

The specific brand of estoppel raised in Evans was promissory estoppel. ⁵³ In English and Welsh Law, this doctrine was first set out in Hughes v. Metropolitan Rly Co ⁵⁴ and resurrected by Lord Denning in Central London Property Trust Ltd v. High Trees House Ltd. ⁵⁵ According to Wall J in Evans, the following conditions must be fulfilled:

Firstly, there must be a legal relationship between the parties. Secondly, the estoppel is not, of itself, the cause of action, although it may be an element in it. Thirdly, there must be a clear and unequivocal promise or representation which is designed to affect the legal relationship between the parties. Fourthly, there must be reliance on that promise or representation by the other party and, fifthly, it must be unconscionable for the person making the representation to be allowed to resile from it. ⁵⁶

This stance was approved at the Court of Appeal as Thorpe and Sedley LJJ found there was a need for ‘bilateral consent’. ⁶⁹ Arden LJ concurred and held that a person cannot contract out of their own benefit in such a scenario: ‘A person may give up a right created by statute for his benefit only, but here the right of withdrawal is granted in recognition of the dignity to which each individual is entitled’. ⁷⁰ ‘Dignity’ must relate to Mr Johnston’s option to choose whether or not to be a parent. However, ‘benefit’ can also be construed when a person wishes to bind themselves into an agreement at a certain point in time. From this apparent paradox of autonomy, it can be noted that the philosophy underpinning Wall J and Arden LJ’s ratios is problematic in terms of Millian autonomy. ⁷¹ Apart from Mr Johnston, there is no harm to any other from Mr Johnston’s actions, which would otherwise make his promise ineffective. ⁷² Legal scholar JA Andrews wrote decades ago that ‘in cases where the doctrine of estoppel has been excluded it is because to have decided otherwise would have allowed a person to achieve by an estoppel against himself something which he could not otherwise lawfully do’. ⁷³ However, there was an exception:

If the Act merely confers private rights on the defendant then he can contract out of them. If they do something more, for example, if they limit the jurisdiction of the court to hear the cause, then the defendant cannot validly contract out of their benefit. ⁷⁴

Suffice to say, for consent to be effective for the purposes of Schedule 3 of the 1990 Act, it must be present in a continuous and mutual contemporaneous form with respect to the IVF treatment. Arden LJ effectively regarded the statutory ‘right’ conferred by Schedule 3 as trumping any ground for estoppel. ⁷⁸ The limitations provided by statute therefore precluded a fuller exploration of the relevance of estoppel to frozen embryo disputes; yet such an exploration shall be undertaken in this article. The purpose is not to advocate a wholesale rejection of the 1990 Act by any means but to investigate the disputes without the legal restriction that embryos cannot be used for implantation if one gamete provider varies consent. Each of the conditions of estoppel outlined above by Wall J will be reconsidered, to understand whether they could be raised in a context such as Evans.

Hypothetical application of estoppel in frozen embryo disputes and remedies

Comparisons and distinctions on estoppels

The distinction between these two types of estoppel rests upon whether the parties’ dispute involved property. It is worth noting that the above discussion on the possible differences in the application of proprietary and promissory estoppel to frozen embryo disputes may be rendered obsolete by debate over whether promissory and proprietary estoppel are not in fact the same estoppel. ¹¹⁰ It is clear there are distinct variants of estoppel in other legal contexts, but as the landscape of IVF would be almost entirely novel for equitable estoppel, it is not clear whether a judgment in English law would borrow reasoning from varieties of estoppels. Wall J himself stated that it was difficult to define the parameters of promissory estoppel and to distinguish them from proprietary estoppel. ¹¹¹ Subsequently, Wall J conflated the two definitions of estoppel by including the detriment requirement in his second definition of estoppel ¹¹² and considering it as a proprietary estoppel case. ¹¹³ This is evidenced further by his consideration of case law ¹¹⁴ and academic literature ¹¹⁵ pertaining to proprietary estoppel in his judgment. This, and uncertainty as to which estoppel could be used, licences a broad-brush approach in this article in reading across a variety of estoppels. As Scarman LJ stated in Crabb v. Arun District Council:

I do not find helpful the distinction between promissory and proprietary estoppel…I do not think that, in solving the particular problem raised by a particular case, putting the law into categories is of the slightest assistance. ¹¹⁶

Case law considering proprietary estoppel is referred to more in the remainder of this article as this body of law more frequently addresses gaps in formalities (whereas promissory estoppel more often deals with an absence of consideration). The lack of formality in frozen embryo disputes involves any representations that a gamete provider makes regarding dedication to the continuance of IVF treatment, which are made before and/or subsequent to a formal agreement. Proprietary estoppel case law also more often discusses the role of expectation; in that a claimant’s work performed on the defendant’s land may reasonably grant him an expectation of gaining an equitable interest in the land. However, the significance of a promise, which is now considered, is especially relevant to promissory estoppel, since it has been held that proprietary estoppel can arise in the absence of a promise. ¹¹⁷

Clear promises, representations and reliance

The third condition of estoppel referred to by Wall J is that ‘there must be a clear and unequivocal promise or representation which is designed to affect the legal relationship between the parties’. ¹¹⁸ A promise might have been deployed by either party, promising that the embryos can be used (in whatever circumstances) or that the other party can change their mind. Promises are important. As Hannah Arendt reasons they ‘are the uniquely human way of ordering the future, making it predictable and reliable to the extent that this is humanly possible’. ¹¹⁹ The question of whether a promise should be kept has triggered debate in economic, ¹²⁰ legal, ¹²¹ political, ¹²² philosophical, ¹²³ psychological ¹²⁴ and sociological ¹²⁵ circles. It should therefore come as no surprise that the validity of a promise in the bioethical scenario of frozen embryo disputes is also controversial.

In the facts of Evans, Ms Evans stated that during one of the couple’s appointments at the clinic, she enquired about egg freezing, whereupon she was told that she would have to go to another IVF clinic for those services. ¹²⁶ Mr Johnston apparently made clear and unequivocal promises to Ms Evans regarding the use of the embryos, according to evidence she submitted. ¹²⁷ Nonetheless, a cross-examination by counsel for Mr Johnston provided some contrary evidence: ‘Ms Evans accepted that Mr. Johnston was not telling her in terms that she could always use the embryos but seeking to reassure her that they were not going to split up’. ¹²⁸ This would indicate ambiguity, and the question becomes how clear and unambiguous promises or assurances need to be relied upon for the purposes of estoppel. The possible stress of cross-examination may have meant Ms Evans was not able to optimally communicate her position. ¹²⁹ Nevertheless, Wall J concluded that Mr Johnston’s assurances were not tantamount to clear, unequivocal representations that he ‘would never withdraw his consent for their use’. ¹³⁰ On the basis of Schedule 3 of the 1990 Act, this had to be the correct legal decision.

The particular wording required for a promise to be effective in frozen embryo disputes based on promissory estoppel is unclear. Even if the words ‘I promise’ are used, it will only carry the function of promising and may not be conclusive. As Rawls queries, ‘I think that one would question whether or not he knows what it means to say “I promise” (in the appropriate circumstances)’. ¹³¹ The common understanding in law is that a promise on its own is merely a statement of intention, ¹³² and without the other elements of estoppel no obligation is created. This can be understood as a protective mechanism, allowing for a degree of flippancy in conversation. It is uncontroversial to state, as US legal scholar Jack Balkin reflects, that ‘we mean more than we say’ ¹³³ and ‘say more than we mean’. ¹³⁴ Unintended consequences not envisioned by the promisor may arise. Balkin elaborates that ‘words seem to perform tricks that we had not intended, establish connections that we had not considered, lead to conclusions that were not present to our minds when we spoke or wrote’. ¹³⁵ A sociolinguistic interrogation of which promises would be sufficient in estoppel is beyond the scope of this article, however, it is noteworthy that Wall J found ‘extremely helpful’ ¹³⁶ that a factor in assessing an assurance would be its ‘quality’. ¹³⁷ Such an assessment of a promise would therefore involve a question of fact, as context becomes significant. Some of the possible tests to help determine what type of representation is required in order for a representee to rely upon them for the purposes of estoppel will now be explored in the context of frozen embryo disputes.

Intention and risk

In reference to estoppel by representation, Sean Wilken and Karim Ghaly have noted that an ‘estoppel may arise if it can be shown that the representor intended its representation to be acted upon’. ¹³⁸ An objective test is generally involved in assessing the intentions of the representor in making the assurances, ¹³⁹ although potential limits to the applicability of this test in the context of frozen embryo disputes will be discussed. Notwithstanding, it will mean that the more formal the representation, the more likely it will give rise to an estoppel. Thus, flippant and non-committal representations will carry less weight. However, the crucial issue becomes deducing what the gamete providers’ intentions would have been in the knowledge that they would separate or that there would be a significant risk they would separate. Lord Walker observed in cases in which proprietary estoppel was established ‘the Claimant believed that the assurance on which he or she relied was binding and irrevocable’. ¹⁴⁰

Neither the High Court nor the Court of Appeal in Evans specifically referred to either parties’ intentions in making representations in Evans, but Wall J did consider that Ms Evans was pursuing the only ‘realistic course’ ¹⁴¹ open to her; and that Mr Johnston’s assurances ‘played a part in what she did’ but were not ‘critical’. ¹⁴² Without the representations Wall J stated, ‘I think she would have gone ahead with the treatment in any event’. ¹⁴³ This reflection strikes at the heart of whether a representation was relied upon. ¹⁴⁴ Yet Wall J’s assumption does not account that women might reconsider treatment were they to be fully informed of the physical and emotional demands and toll of IVF and associated procedures. ¹⁴⁵ Elise Bant and Michael Bryan argue cogently, the common theme underpinning the various doctrines of estoppel (including promissory and proprietary) ‘is the law’s concern to respond appropriately to, and not to reward, undue risk-taking on the part of claimants in a non-contractual context’. ¹⁴⁶ IVF involves risk, and perhaps Wall J presupposed that the risk Ms Evans consented to entailed not only failed medical treatment but also the consequences of a failure of relationship.

The issue of intention in representations was analysed in the Supreme Court of Israel in Nahmani where Tal J discussed a legal approach for tackling the dilemma of whether the couple would have pursued treatment in the knowledge of a future break-up:

The law reconstructs a person’s intentions in two ways; presumed intention and imputed intention: presumed intention, according to experience of life and common sense, and according to the special circumstances of each case; imputed intention, when there is no way of assessing the presumed intention of the parties, and the law – for its own purposes – attributes to someone an intention without his knowledge, and maybe even against his will. ¹⁴⁷

The extent to which a representee is willing to rely on a representation will inevitably vary according to each case, and a broad inquiry may be required. Questions should be raised as to whether either gamete provider expressed doubts regarding her obligations and the treatment, whether satisfactory enquiries were made concerning the representor’s promise and whether enquiries were made beyond the representor, to healthcare or legal professionals. An objective approach in assessing risk was laid out by Lord Hoffmann in a case in which a taxpayer had been acting under a mistake of law when paying advance corporation tax:

I would not regard the fact that the person making the payment had doubts about his liability as conclusive of the question of whether he took the risk, particularly if the existence of these doubts was unknown to the receiving party…the question of whether a party should be treated as having taken the risk depended upon the objective circumstances surrounding the payment as they could reasonably have been known to both parties, including of course the extent to which the law was known to be in doubt. ¹⁵⁰

The circumstantial component

The notion that the representation should not be binding due to ‘changed circumstances’ has been considered in some frozen embryos disputes. In one such dispute (albeit not considering estoppel), the Massachusetts Supreme Judicial Court held that due to ‘significantly changed circumstances’, a consent form the parties had signed could not be seen as intended to allow the woman to use the embryos. ¹⁵³ Returning to Evans, Wall J applied a similar argument:

He was not – nor could he be – committing himself for all time. In the field of personal relationships endearments and reassurances of this kind are commonplace, but they do not – nor can they – have any permanent, legal effect. They certainly cannot bind Mr. Johnston in what were totally changed circumstances, namely his separation from Ms Evans. ¹⁵⁴

Tal J highlights that although the circumstances of the original agreement had changed, ‘the husband is also estopped with regard to this argument (enforceability of contract), since it is he who has changed the situation’. ¹⁵⁹ If the ‘changed’ ‘situation’ here refers to the relationship breakdown, then it could be argued it is more difficult to justify estoppel, since the causes of relationship breakdown can be varied and complex, and to rule against him on this basis would be harsh. Moreover, the partner seeking implantation could also be the one to end the relationship.

Alternatively, it could be queried whether the female partner would have sought treatment elsewhere absent the representation. This was the line of questioning Wall J also employed, considering that it would have been unlikely that Ms Evans could have found alternative treatment due to time constraints. ¹⁶⁰ In other case law, it has been held that loss of opportunity may be sufficient to establish estoppel, ‘if there were alternative courses available which offered a real prospect of benefit, notwithstanding that the prospect was contingent and uncertain’. ¹⁶¹ Thus, someone in Ms Evans’ situation may have sought IVF treatment alone, with another partner, or a donor. A more recent development which might be used in the future for women in Ms Evans’ position concerns the possible human application of recent technologies involving 3-D printed bioprostehtic ovaries which allowed infertile mice to give birth. ¹⁶² The relevance of such alternatives to the decision of the court may depend on whether they still exist or are feasible (no alternatives to genetic parenthood existed for Ms Evans due to the removal of her ovaries (oophorectomy) nor for Ms Nahmani due to her hysterectomy). The age of the patient is pertinent as well with regard to future fertility possibilities. For the purposes of fertility, there is no singular understanding of what constitutes an older woman or the point at which maturity begins, ¹⁶³ but it is uncontroversial to note that the older a woman becomes, the more significant reduced reproductive opportunities become. ¹⁶⁴

Thus, in terms of assessing Ms Evans’ reliance on Mr Johnston’s representations as detailed previously, Wall J adopted too narrow a test. Robert Goff J (as he then was) provided a more authoritative approach utilizing a wider test from an estoppel by convention case:

[T]he question is not whether the representee acted, or desisted from acting, solely in reliance on the encouragement or representation of the other party; the question is rather whether his conduct was so influenced by the encouragement or representation…that it would be unconscionable for the representor thereafter to enforce his strict legal rights. ¹⁶⁵

Another approach would be to evaluate the reliance factor in the event the roles of representor and representee were interchanged, that is, as Tal J posited, ‘Can it be presumed that he would have refrained from (pursing treatment)…had he known that he could not subsequently change his mind?’ ¹⁶⁷ Tal J concluded not, since men also do not refrain from sex on the basis that they will not be consulted later with regard to an abortion. ¹⁶⁸ Predictably, dissenting judge Zamir J took the opposite view regarding Mr Nahmani (Daniel):

Let us assume that before the procedure began, Daniel was asked as follows: if during the procedure, but before implantation of an ovum, a serious dispute will break out between you and Ruth, which will lead you to a complete separation and serious animosity, would you, even in such a situation, consent to implantation of the ovum, which would make you and Ruth joint parents of a child? In my opinion, Daniel’s answer, as a reasonable person, would be no. And if he were asked before the start of the procedure as follows: assume that after you separate from Ruth, as a result of a serious dispute of this kind, you establish a new family for yourself and even have a child of your own with your new partner. Would you consent to implantation of the ovum, notwithstanding all this? Again, in my opinion, Daniel’s answer would be: no and no. ¹⁶⁹

Implied representations

A further approach to assess reliance on the representation(s) would be to consider what was implicitly held in the representation(s). This was the approach (not in reference to an estoppel argument) taken by the Superior Court of Pennsylvania in a frozen embryos dispute in which the embryos were awarded to the woman seeking implantation:

We believe that Husband implicitly agreed to procreate with Wife when he agreed to undergo IVF, signed the consent form, provided sperm for the creation of the pre-embryos, and agreed to the fertilization causing the pre-embryos to be created. The use of the pre-embryos was never made contingent upon the parties remaining married. ¹⁷⁰

Unconditional promises are more likely to give rise to estoppel. ¹⁷² This could also be applied to frozen embryo disputes to ask whether the assurances or promises were conditional on the relationship continuing, and whether they meant to continue indefinitely. A representation such as ‘we’ll never break up, and even if we did, you can do whatever you like with the embryos’, would be an example of an unconditional promise, which takes into account the contingency of breaking up, and should therefore represent a ‘categorical assurance, in terms, that whatever happened between them she could use the embryos in order to become pregnant’. ¹⁷³ Wall J noted that Ms Evans inferred such a categorical assurance from Mr Johnston’s words. ¹⁷⁴ Strasberg-Cohen J highlighted the issue in the Nahmani case in his dissenting judgment: ‘Daniel did not promise Ruth that the procedure would continue whatever the conditions or circumstances, and such a promise cannot be inferred from his consent to begin the procedure when their family life was intact’. ¹⁷⁵ Unsurprisingly, Tal J viewed the same issue through a converse lens:

in the absence of an express stipulation between the parties concerning the fate of the ova in a case of separation, it should be presumed that their intention was that one party would be unable to stop the procedure against the will of the party interested in the implantation. ¹⁷⁶

Reliance will therefore likely be stronger for representations which are more detailed and take into account relevant circumstances and contingencies. However, Strasberg-Cohen J’s dissenting judgment that representations should contain a proviso that they will operate under any conditions or circumstances in order to be effective for estoppel is not necessarily required to show reliance.

Lord Neuberger, in Thorner v. Major, ¹⁷⁷ laid out an alternative test for assessing assurances or representations in proprietary estoppel where ambiguity existed:

[T]here may be cases where the statement relied on to found an estoppel could amount to an assurance which could reasonably be understood as having more than one possible meaning. In such a case, if the facts otherwise satisfy all the requirements of an estoppel, it seems to me that, at least normally, the ambiguity should not deprive a person who reasonably relied on the assurance of all relief: it may well be right, however, that he should be accorded relief on the basis of the interpretation least beneficial to him. ¹⁷⁸

Ms Evans could have argued that from her perspective Mr Johnston’s representations were not open to more than one reasonable interpretation, and no other clarification was required to interpret his statements. This standard could be more relevant for promissory estoppel, with relevant dicta of the need for clear representations for this type of estoppel contained in Woodhouse AC Israel Cocoa Ltd SA v. Nigerian Produce Marketing Co Ltd ¹⁸³ in which Lord Hailsham required that the representation should be ‘reasonably understood in the particular sense required’. ¹⁸⁴ Moreover, the representee should be ‘justified in having no doubt that the words meant what (s)he took them to mean’. ¹⁸⁵ This could be applied in the present case, as Ms Evans concluded that following Mr Johnston’s continued assurances of his commitment to her, she ‘simply accepted what he said and…(they) just carried on’. ¹⁸⁶

Does the availability of egg freezing affect her reliance on his assurances?

The fourth condition of estoppel is that ‘there must be reliance on that promise or representation by the other party’. ¹⁸⁷ The sense that a promise should be enforceable only if it has been relied upon has been criticized as an ‘arbitrary limitation on the scope of promissory liability’. ¹⁸⁸ Wall J did not appear to take into account the possibility that Ms Evans could have frozen her eggs since ‘by undergoing IVF with Mr. Johnston (she was) taking the only realistic course was open to her’, ¹⁸⁹ which is understandable since the technology was still novel at the time. ¹⁹⁰ The emergence of egg freezing (also known as oocyte cryopreservation) leads to three important issues for estoppel which shall be addressed in this section. First, whether egg freezing does affect the woman’s reliance on the man’s representation. Second, how the somewhat uncertain nature of egg freezing should be factored into this discussion. Third, whether mandatory counselling would affect the first point.

With regard to the question of whether it is reasonable for a representee to whom representations have been made to take the representations at their face value and rely on them, it would not in general be open to the representor to say that he or she had not intended the representee to rely on them. ¹⁹¹ In Evans, Ms Evans argued that Mr Johnston’s assurances ¹⁹² dissuaded her from ‘insuring against the breakdown of their relationship’, ¹⁹³ indicating a forbearance. Such an ‘insurance’ might have taken the form of Ms Evans freezing unfertilized eggs or by storing eggs fertilized with a donor’s gametes. ¹⁹⁴ In the context of proprietary estoppel, the first response to this is whether there is ‘a sufficient link between the promises relied upon and the conduct which constitutes the detriment’. ¹⁹⁵ One manner to assess this is to directly question the claimant to ascertain whether there had been reliance. Ms Evans/Ms could have been questioned: ‘If Mr Johnston/Mr Nahmani had at least told you there was a chance that he might change his mind and not allow you to use the embryos, what would you have done?’ The point of this questioning is twofold: to indicate whether or not the gamete provider would have proceeded with unnecessary treatment, including any physical, emotional and financial disadvantage to that person. Second, to indicate whether or not the person would have sought alternative methods of reproduction.

The second point leads to a further issue noted by Wall J: ‘both egg freezing and AID would have opened up the question of the durability of her relationship with Mr. Johnston’. ¹⁹⁶ As the fertility sister at the clinic confirmed, ‘if oocyte freezing had been raised, it would have suggested to me that there was some doubt about them seeking treatment as a couple’. ¹⁹⁷ Her concern was derived from the (then) law, ¹⁹⁸ section 13(5) of the 1990 Act, which required that the ‘welfare of any child who may be born as a result of the treatment (including the need of that child for a father)’ be taken into account. Wall J specifically referred to this law, which indicated the potential need for a father. ¹⁹⁹ The relevance for an estoppel case is that it could show that the party seeking implantation relied to a greater extent on the representations in the face of reduced alternative reproductive options.

Sally Sheldon has commented that the storage of eggs by freezing is a ‘sensible precaution’, and withholding this option could force the female gamete provider into reliance on the man:

[W]hy should requesting storage of eggs or embryos created via donor insemination be taken as a lack of confidence in a current relationship liable to ring warning bells for the welfare of the child, rather than a sensible precaution based on the indisputable fact that even those relationships which we are quite convinced will last, very often do not? ²⁰⁰

A further point to consider is the availability of estoppel in the event that the party seeking implantation does freeze their gametes. Imogen Goold and Julian Savulescu reflected that if Ms Evans had frozen her eggs, the situation ‘would be profoundly different’. ²⁰⁴ Clearly, she would have had another route available for genetic parenthood. However, egg freezing would not detract from her reliance on Mr Johnston’s representations if those eggs did not result in a successful pregnancy. Moreover, women may not wish to pursue a procedure in which uncertainties remain regarding efficacy and the possible harm to potential offspring. The American Society for Reproductive Medicine recently stated that there ‘are not yet sufficient data to recommend oocyte cryopreservation…because there are no data to support the safety, efficacy, ethics, emotional risks, and cost-effectiveness of oocyte cryopreservation for this indication’, ²⁰⁵ thus:

[I]t is too soon to conclude that the incidence of anomalies and developmental abnormalities of children born from cryopreserved oocytes is similar to those born from cryopreserved embryos. Oocyte cryopreservation will need to be studied in adequate numbers of patients for a sufficient length of time to determine whether the development of children is comparable to those conceived from other established assisted reproduction techniques. ²⁰⁶

Due to the novelty of the technology, psychologist Jon Weil argues that in such a context ‘considerations of contraception or technological interventions such as prenatal diagnosis impinge upon some of the most intimate, emotionally profound experiences’. ²⁰⁹ The decision whether to freeze one’s eggs, as with one’s embryos, may likewise be very much emotionally charged, and the option to the woman seeking implantation to proceed with treatment should not be hampered by uncertainty surrounding egg freezing. Whether counselling was offered to the gamete providers may make a difference in deciding whether a woman’s choice to freeze her eggs or not demonstrates that she relied on the man’s assurances. Under the present regime counselling ‘must be offered’ ²¹⁰ with a ‘suitable opportunity’ ²¹¹ for treatment services involving the use of the in vitro embryo, including IVF. However, use of counselling services is not mandatory. ²¹² In a discussion of whether there was reliance on assurances made, counselling could help promote informed consent, thereby strengthening the validity of any agreement made between gamete providers about the fate of the embryos, which in turn would potentially weaken the woman’s reliance on the male’s assurances. Counselling could provide a forum within which these ideas could be explored more fully between partners.

As egg freezing is a relatively new medical process, the possibility of it leading to a successful pregnancy is likely to improve, ²¹³ meaning the potential to freeze one’s eggs may lead to arguments that the woman is less reliant on the man’s representations. Egg freezing is becoming more socially acceptable, as the well-publicized moves of corporate funding of employee egg freezing illustrate, ²¹⁴ and this could indicate greater acceptance that the availability of this technology indicates lack of reliance. However, since the current success rates of thawing an embryo leading to a live birth stand at between 5% and 15%, ²¹⁵ the effect on reliance is still negligible. Moreover, Heidi Mertes has pointed out that women should feel under no pressure to take up the corporate offer of egg freezing. ²¹⁶ Again, Weil’s position would ring true – egg freezing is likely an emotionally profound experience, and women should not be found to have relied upon a representation less simply because they did not pursue an option open to pursue this new technology. Moreover, these points obviously become superfluous once women are in the position that they do not have the opportunity to access or retrieve more of their own eggs due to, for example, an oophorectomy or hysterectomy.

As a final point, it should be noted that the costs of egg freezing may be prohibitive ²¹⁷ to some people. However, a woman such as Ms Evans, for whom a particular IVF cycle represents a last chance of genetic parenthood, especially as a result of other medical treatment, may be in a stronger position to request national health service (NHS) funding for egg freezing following R (on the application of Elizabeth Rose) v. Thanet Clinical Commissioning Group. ²¹⁸ In this case, a woman suffering from Crohn’s disease required chemotherapy which carried a high risk of making her infertile. ²¹⁹ The CCG’s decision not to provide funding for egg freezing was deemed unlawful since it demonstrated an impermissible departure from National Institute for Health and Care Excellence (NICE) guidelines ²²⁰ on the basis of its disagreement with NICE’s medical or scientific rationale. ²²¹ The extent of the Thanet ruling remains unclear, especially following obiter dicta by Jay J. ²²² The latest NICE guidance recommends that egg freezing be offered if women are ‘well enough to undergo ovarian stimulation and egg collection, and this will not worsen their condition, and enough time is available before the start of their cancer treatment’. ²²³ This guidance would likely be applicable to women who require the removal of pre-cancerous tumours from their ovaries, as did Ms Evans. ²²⁴

Conclusion

Estoppel can be utilized for an equitable resolution of frozen embryo disputes. A representation that IVF treatment should be pursued with the aim of implantation, which can be shown was reasonably relied upon to pursue the course of treatment, should especially allow for estoppel to arise. The more that verbal or written representations encourage a gamete provider to pursue treatment, the greater their relevance for estoppel. That there may exist significant doubts that the (future) embryos could be used, coupled with encouragement to pursue treatment, should act to provide the necessary conditions for an estoppel case in a frozen embryo dispute if there is also reliance on the relevant representations. The assessment of whether there was reliance is flexible but also complex and multi-layered, dependent on a range of factors, which include the manner in which representations were given, the time period between the representation and its withdrawal, how much treatment was undertaken in the interim period, and the reproductive opportunities lost and remaining to the gamete provider relying on the representation. The temptation to avoid this potentially complex investigation in favour of the more simplistic, blanket resolution provided by Schedule 3 of the 1990 Act jettisons equity.