Massachusetts Court Rules In Frozen Embryo Case

By Daniel Avila, Esq.

Last month, the Massachusetts Supreme Judicial Court (SJC) issued an opinion that assailed traditional understandings of procreation and parenthood and appears to open the door to the wholesale destruction of frozen embryos in Massachusetts.

The case of A.Z. v. B.Z. turned on the question of what happens to frozen embryos when the mother wants them implanted and the father does not. The four embryos at stake in the case were created consensually in 1991 by in vitro fertilization before the couple was divorced in 1995. The dispute over the embryos arose when the father, in the course of the divorce proceeding, learned of the mother's desire to implant them and filed for an injunction preventing her from doing so against his wishes.

In 1996, a Massachusetts trial judge found for the father, citing the Tennessee Davis v. Davis decision. In that 1990 ruling, the courts had permitted the destruction of frozen embryos when the parents could not agree what to do.

The SJC decided to hear the case directly, but delayed a hearing until 1999 because the lower court had lost certain records that needed to be reproduced. This lent urgency to the deliberations, since the fertility clinic had advised the mother that any attempt to bring the embryos to term would be medically futile after June 2000 because of the mother's age.

In February of this year, the SJC issued a brief order in the father's favor, promising to release a full opinion later. On March 31, Justice Judith A. Cowin, writing for the unanimous seven-member court, agreed with the trial judge that the consent forms were not binding on the father.

Justice Cowin rejected the use of a balancing test that might have given mothers in some cases at least a theoretical chance to override a father's objection to the implantation of their embryos. She found instead that implantation in any case where the couple is split over what to do with the embryos would " compel one donor to become a parent against his or her will," and that "forced procreation" was against public policy!

Thus, frozen embryos could never be implanted when the father refuses consent, even if the mother proved the father had earlier made an otherwise enforceable agreement to consent.

Because the decision relied on an interpretation of Massachusetts public policy, the mother appears to have no recourse for appealing to the U.S. Supreme Court. Moreover, time is running out for her to successfully bear the embryos, thus effectively rendering any appeal moot. News reports are mixed about whether the embryos will be thawed and left to die or destroyed outright.

What did Justice Cowin mean by concluding as a matter of law that implanting the already existing embryos would be "forced procreation"? Webster's Dictionary defines procreation as "the act of begetting; generation and production of young." To beget, Webster's indicates, is "to cause to exist."

As pointed out by a "friend of the court" brief filed by the Catholic Medical Association and other groups, "the 'pro-creation' involving the father's bodily donation of sperm has already occurred with the father's consent, resulting in the conception of the embryos." The reality of the embryos' creation and existence will not change by some mysterious biological process if the father succeeds in preventing their implantation in his ex-wife's womb. As the brief put it, "The embryos rest in frozen storage, real, not imaginary products of the father's consensual participation in their beginning." (A copy of the brief can be downloaded from www.macathconf.org under "latest news".)

The key to Justice Cowin's remarkable legal conclusion is her discussion of the case's facts. She announced on the opinion's first page that the court will refer to the embryos as " preembryos," and cited without any further explanation a 1994 report of the American Fertility Society. The report has attracted substantial scientific criticism. Contrary to the consensus that exists among embryologists, the report tried to demonstrate that human beings somehow do not begin to exist at fertilization by coining the term "preembryos."

Justice Cowin then sidestepped the debate over when life begins by asserting matter of factly and without argument that the embryos are not yet "conceived" or "procreated" and would not be unless and until they are implanted with the consent of both parents. As a consequence, the father is not yet to be considered a parent responsible for the survival of his children nor is the mother yet a parent with the right to custody of her children.

Parenthood is, the opinion suggests, not a consequence of biology but rather entirely a matter of where the children are physically located and of who wants to be in a social relationship with them.

And if the "donors" were in agreement rather than at odds, Justice Cowin's opinion appears to free them to do whatever they please with their frozen embryos, including selling the embryos for research or destroying them, because they are not subject to the obligations of legal parenthood. This means that all of the frozen embryos in the commonwealth of Massachusetts have, in effect, no legal parents and now certainly have no legal rights.

While the A.Z. v. B.Z. decision raises numerous problems in Massachusetts, it will undoubtedly have an impact outside of Massachusetts as well. As a precedent from an influential state court, the decision places an even greater wedge between biological reality and legal dictate.

It ratifies (although it does not mention it) the controversial policy adopted a few years ago by the American College of Obstetricians and Gynecologists that attempts to redefine the moment of conception as occurring at implantation and not at fertilization.

The most disturbing aspect of the opinion is the value that it assigns to the children involved - - that is, none at all in the law's eyes.

Mr. Avila is the associate director for public policy of the Massachusetts Catholic Conference.