CAMDEN, N.J. — Child custody and property disputes were once regarded as the brutal but unavoidable finale of a failed marriage.
But compared with some of the ethical and legal challenges faced by divorced couples of today's biotech generation, yesterday's tangles were relatively straightforward.
Take the case of one former couple that is currently before the New Jersey Supreme Court. Divorced five years ago, the two remain locked in a pitched battle over what to do with seven frozen embryos left over from a six-year-old attempt at in-vitro fertilization.
In all, 11 viable embryos were created, of which four were implanted without resulting in a live birth.
The man, who has been described in some media accounts as “an observant Roman Catholic,” wants the embryos saved. He maintains that they are tiny human lives, and therefore worthy of the protection of the state.
Moreover, the man, referred to in the case as “M.B.,” says that his former wife agreed, while they were married, to save any unused embryos that resulted from their in-vitro fertilization efforts for use by another infertile couple. If the court rules in his favor, the man says, he will either give the embryos up for adoption or have them implanted into a future wife.
His ex-wife, referred to as “J.B.” in the court proceeding, wants the embryos destroyed. She doesn't want to be made a biological mother against her will, she says.
As well, she doesn't think an agreement she made during a marriage that is no longer recognized by the state should be binding.
This is the fourth post-divorce embryo custody battle to reach state courts since the advent of in-vitro fertilization techniques over 20 years ago. In each of the previous cases, a husband sought to destroy leftover eggs against the wishes of his former wife, and won. But the New Jersey case is the first in which either party has sought to save embryos on the grounds that they are human lives worthy of the state's protection.
While the man in this case may have greater moral leverage than the woman, his legal leverage is nil, said the woman's lawyer, James Katz.
No Legal Protection
“You may have disagreements over when life begins and what constitutes life, but as a matter of law, the four-to-eight cell pre-embryo is not entitled to legal protection,” he said.
“And if that's the case,” Katz added, “maybe people shouldn't be undertaking this assistive technology.”
Two of New Jersey's lower courts have already affirmed the woman's position. The Supreme Court is expected to rule within the next three months.
Lawyer Eric Spevak, who is representing the man in the case, is not optimistic about his chances for victory. His client is able to conceive with another woman, and the court is unlikely to be moved by an appeal to the humanity of the embryos, he said.
“Realistically, I have the law against me, and I have facts that aren't that great given that my client can have children with another woman,” Spevak said.
Spevak hangs his case on two points. First, he believes that the goal of the court and the goal of public policy in the state of New Jersey should be the preservation of “a form of life and the potential of human life,” represented by the embryos.
Secondly, he believes the woman should be held to her prior commitment.
“The parties already made the decision to procreate with these embryos. What we're saying is he has the right to carry out on that decision,” Spevak said.
“In reliance on that agreement he went through with the in-vitro fertilization process with her.”
Peter J. Cataldo, staff ethicist at the National Catholic Bioethics Center in Boston, said in-vitro fertilization techniques have opened a “Pandora's box” of thorny moral, ethical and legal problems.
“Issues like what to do with frozen embryos and issues of custody are simply the logical consequence of the procedure which is by itself morally unacceptable,” Cataldo said. He added that treating human embryos as property is the result of “many developments, not the least of which is Roe v. Wade.”
Though the Church has not yet dealt definitively with the issue of how to deal with frozen embryos, there are basic moral principles that apply, Cataldo said.
“One is that the life of the embryo is inviolable, that it is fully human and has a human dignity equal to any other human being, which must be respected and which forms the basis for the human rights which should be accorded to the embryo.”
Cataldo said Catholic ethicists today take one of three positions on frozen human embryos.
One position states that that it is morally unacceptable to allow the frozen human embryo to be adopted and implanted and brought to term because this is surrogate motherhood and simply an extension of the invitro fertilization process.
The second is to allow these embryos be put up for adoption and implanted in surrogate mothers, if that's possible, as an act of rescuing and attempting to save the embryos' lives.
The third is that it might be morally permissible to allow the embryo to thaw and to pass away under the principle that one is not morally obligated to provide ethically extraordinary means to preserve human life.
“This is an unsettled moral question,” Cataldo said “The best we can do until there is a definitive teaching is to explain what is absolutely morally unacceptable and what, on the other hand, may be morally acceptable. That's the state of things at this point.”
Concluded Cataldo, “What is absolutely morally unacceptable would be the directly intended destruction of these innocent human beings.”
Speaking at a 1996 symposium on “Evangelium Vitae and Law,” Pope John Paul II said, “I therefore appeal to the conscience of the world's scientific authorities and in particular to doctors, that the production of human embryos be halted, taking into account that there seems to be no morally licit solution regarding the human destiny of the thousands of ‘frozen” embryos which are and remain the subjects of essential rights and should therefore be protected by law as human persons.”