Frozen Embryos and Fluid Morality
On the Use and Abuse of Language

Donald DeMarco
Ethics &Medics
Reprinted from Vol. 24 No. 2, pages 1-2
Reproduced with Permission

Frozen Embryos and Fluid Morality In the 1973 Roe v. Wade decision, the Blackmun Court found that a woman's right to abort was "implied in the penumbra" of the United States Constitution. The Court decreed that a woman could have an abortion in the first two trimesters of her pregnancy on the basis of her constitutional "right to privacy." But it neither said nor implied what dominion a woman might have over her unborn progeny if they did not reside within her body.

The freezing of human embryos, sometimes referred to as "supernumeraries" or "surplus embryos," associated with in vitro fertilization, has carried the Courts into relatively uncharted waters. Does a woman have the right to "dispose" of her frozen embryos as she wishes? Does her husband have equal legal status in the matter? If there is a dispute between husband and wife with regard to determining the fate of their cryopreserved offspring, how is the matter to be resolved?

An Important Court Decision

A recent decision by the New York Court of Appeals (May 1998) has brought these questions, and more, into sharp focus. A brief reproductive history of the litigates is needed in order to appreciate the moral significance of the court's ruling. Steven Kass and his former wife, Maureen, failed, in two years of marriage, to achieve a pregnancy through sexual intercourse. Consequently, they sought the assistance of an in vitro fertilization (IVF) program. Through IVF and implantation, two pregnancies were achieved, though one miscarried while the other was ectopic. A fifth IVF cycle produced nine embryos. After recognizing Maureen's difficulties in maintaining pregnancy, her sister volunteered to serve as a surrogate. Subsequently, four embryos were emplaced in the sister's body, while the remaining five were frozen. When it was determined that no pregnancy resulted from any of the emplacements, the couple decided to divorce. Maureen sued to obtain sole custody of the remaining embryos. Her ex-husband, however, counter-claimed that their prior agreement granted the IVF program the right to use the embryos for research.

The trial judge ruled in Ms. Kass's favor, stating that a woman should have the same dominion over her in vitro embryos as she has over those she may have conceived in vivo. The Appellate Division of the Supreme Court, nonetheless, disagreed. All five justices held that an in vitro conception has a fundamentally different legal implication than one commencing in a woman's body. The majority of the justices agreed with the husband: two on the basis of a clear prior agreement, one on the principle that the party wishing to avoid "procreation" should always prevail. This latter principle was decisive in similar cases involving a divorced couple where there was no prior agreement concerning the disposition of their frozen embryos. In Davis v. Davis (Maryville, TN, 1989) and in a 1998 New Jersey case, both involving seven frozen embryos, the courts ruled in favor of the parties that wanted the embryos destroyed.

Irresponsible Use of Language

Some commentators have viewed the Kass ruling, which honored the couple's prior agreement to donate their five embryos to research, as a victory for the progenitors' personal autonomy (John Robertson, "Meaning What You Sign," Hastings Center Report, July-August 1998). The language of the Court, however, in sedulously avoiding proper recognition of the identities of the parents, their children, and their relationship and responsibilities to them, indicates how an irresponsible use of terms can rationalize virtually anything. Consider four terms in particular that the New York Appellate Court employed in its written statement:

1.) Gamete donors: The Court stated that "agreements between progenitors, or gamete donors (italics mine), regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them" (p. 5). The Court wanted to avoid the incontrovertible fact that when a sperm (the male gamete) penetrates an egg (the female gamete), fertilization occurs, immediately resulting in the formation of a zygote (the biological term) which is the first stage in the continuing development of a new human being. In commenting on the court's ruling, legal expert John Robertson employs, with approval, the expression "gamete providers."

Here is a good example of reductionism . Husband and wife do provide gametes. This, at least, is a more accurate term than "donating" them. Donation implies the existence of a beneficiary. But if both husband and wife are donors, who is the beneficiary of their donation? Neither are husband and wife mere "gamete providers"; they are parents, father and mother. Likewise, it would not be fair to refer to the justices merely as "pen pushers," any more than it would be just to label a mother as simply a "baby-maker" or a father as nothing more than a "bread winner."

2.) Procreation: One justice, recognizing what he presumed to be the "male gamete donor's prerogative not to procreate," was really referring to the father's desire not to be burdened with having to raise his children. Procreation had already taken place. The frozen embryos are not entities that have been pre-procreated, perhaps awaiting the day when they might finally be "procreated." Procreation takes place at conception, not after an embryo has been frozen, thawed, and implanted. The embryos have, indeed, been procreated, and exist specifically as human beings, tiny and cold as they are. They could, conceivably, under favorable circumstances, subsequently be implanted, gestated, delivered, and nursed, but that is only because they have already been procreated and not by "gamete donors," but by their mother and father.

3.) Pre-zygote: Simply stated, there is no such thing as a "pre-zygote." To use "gamete donor" instead of parent is a reduction. To use "procreation" instead of child raising, is an anachronism. But to use "pre-zygote" instead of embryo is an invention. In the Maryville, TN, case, the internationally distinguished geneticist, Jerome LeJeune, testified forcefully that there is no such word or reality as a "pre-embryo." "There is no need for a subclass of the embryo to be called a pre-embryo," he told the court, "because there is nothing before the embryo; before the embryo there is only a sperm and an egg ..." (LeJeune, The Concentration Can, Ignatius Press, 1990). If the term "pre-embryo" is an invention, the term "pre-zygote" is even more so. There is no organismic entity that precedes the zygote. The zygote is the initial stage of development.

4.) Disposition: Killing is too harsh a word. "Disposition" is vague and indecisive enough to appear harmless. Nonetheless, it includes killing as its most likely incarnation. Dr. Robert Casper of the IVF clinic at the University of Toronto told Canada's Royal Commission of New Reproductive Technologies that "we don't just throw them away [the frozen human embryos], we destroy them ‘naturally' by putting them into the mother's body where they are naturally absorbed in the vagina." Still, the word "destroy" reveals too much. "Determining disposition" is the gentler, more humane, and more politically correct expression. Moreover, it accords with freedom. Parents are not compelled to care for their frozen offspring, but may, in the liberty of their consciences, dispose of them as they see fit: as waste, for science, or so that others may try to sustain their life. The embryos themselves are moral ciphers. Freedom of choice is the only relevant moral principle.

Fluid Morality

While exact figures are unavailable, experts estimate that at the present moment there are 20,000 frozen embryos subject to dispute in the United States. In all, there are an estimated 100,000 embryos in storage nationwide.

It sounds innocuous, if not downright positive, to declare that "gamete donors have the right to determine the disposition of their pre-zygotes so that procreation may or may not occur." It is simply rude to make the bald statement that "Parents may avoid child raising by killing their children." Yet, the latter is in actuality what the former includes, once the euphemistic masquerade is removed and the meaning properly translated. The plight of the frozen embryos has given rise to a fluid morality that can rationalize the denial of parenthood and the identity of their children, as well as the obligations to care for and not kill them.

The New York Appellate's decision represents as good an example of "data smog" as one can find in an era of data smog. It is a victory of choice over care, obfuscation over clarity, expediency over morality. It is another, in an all-too-long string of legal decisions that reveals how morally bankrupt the courts are in the area of reproductive technology, as a direct consequence of trying to make abortion constitutional.