The world’s first frozen embryo baby was born in Melbourne, Australia, in March 1984. The child’s mother, as a result of superovulation, produced 11 eggs. Ten of these were fertilized. Of the fertilized eggs, three were lost in unsuccessful implantation attempts, and the remaining seven were frozen. One of the frozen embryos was rejected as being unsuitable, while four did not survive the freezing process. The two remaining embryos were implanted. One survived, was delivered by Caesarean section, and was named Zoe Leyland.

The Leyland case well exemplifies the many things that can go wrong with embryo freezing (six of seven perishing for three distinct reasons), as well as the one thing that can go right (the birth of Zoe Leyland).

Embryo freezing has been criticized on the grounds that a doctor should not create a situation in which he has more patients than he can possibly keep alive. Others have criticized the procedure because of its extremely low success rate.

Dr. William Karow, for example, as director of the Southern California Fertility Institute, where embryos are routinely frozen, estimates that the chances of producing a “freeze-thaw” baby are about 2% to 3%. Nonetheless, he is not discouraged by this paltry success rate: “My philosophy has always been to try everything that’s possible.”

Karow’s enthusiasm for trying “everything that’s humanly possible” is not one that is shared by the Catholic Church, since that timeless institution firmly believes that not all actions that are humanly possibly are respectful of the dignity of the human person.

On Dec. 12, the feast of Our Lady of Guadalupe, America’s patroness of life, the Vatican released Dignitas Personae (The Dignity of the Person). This bioethics instruction from the Congregation for the Doctrine of the Faith once again, as in Donum Vitae (The Gift of Life, 1987), put forth the argument that human actions, specifically in the sphere of human procreation, must be consistent with and respectful of the dignity of the human person.

In this light, it should be acknowledged that the instruction is not against reproductive technology as much as it is a defender of the dignity of the human person.

The Leyland case would not be consistent with the Church’s teaching because it involves masturbation, in vitro fertilization (IVF), as well as embryo freezing (all of which are deemed “illegitimate”). Nonetheless, a child was born. Would it not be legitimate to offer a frozen embryo its only hope of being born by thawing and implanting it either in its own genetic mother or in a surrogate?

The broader question that the Zoe Leyland case poses is whether prenatal adoption is ethically permissible.

An extraordinary case oc--curred in Australia in 1981 that brought the issue of prenatal adoption to the public’s attention in a most dramatic way. Elsa Rios of Los Angeles had several of her eggs fertilized in vitro with sperm from an anonymous donor. The IVF team at Australia’s Queen Victoria Medical Centre froze two of them and tried to implant the others in Mrs. Rios. The implantation attempts failed. Shortly thereafter, Mrs. Rios and her husband were killed in a plane crash in Chile.

The Rios couple had no other heirs. What they bequeathed to the world was the first instance of orphaned frozen embryos.

Australian law at that time had no provision for dealing with frozen embryos whose parents were dead. The late husband, Mario Rios, was a millionaire property developer. Speculation swirled that a surrogate gestator might give birth to one or both of the frozen embryos, and thereby, claim a share in the deceased millionaire’s estate.

It was also feared that such a woman might be more interested in the inheritance rather than in the good of her offspring.

The entire matter was further complicated by the fact that an anonymous sperm donor and not Mario Rios was the biological father.

A “scholarly committee” in Australia studied this most unusual situation and made its recommendation to the government that the two frozen embryos be destroyed. State officials accepted the recommendation.

Lawmakers in the state of Victoria, however, rejected it and passed an amendment calling for an attempt to have the embryos implanted in a surrogate mother (or mothers) and then placed for adoption.

The legal complexities surrounding the embryos, had either been born, were rendered moot, however, since the attempts to implant them failed.

The dominant ethical question that emerged from the Rios case was whether prenatal adoption is permissible when there is no other hope for a frozen embryo to be born.

Can prenatal adoption be viewed as a humane rescue attempt from a situation in which death would be certain? Naturally, no woman would be obliged to attempt such a procedure, but it could be regarded, perhaps, as a generous and heroic venture that goes far beyond the call of duty.

The distinguished Catholic moralist Germain Grisez received a heart-wrenching letter from a stranger in which she asked if it would be ethical for her to bear her sister’s frozen embryo. The questioner recounted the tragic life of the sister that included falling away from the Church and having several affairs and abortions. The sister married at 35, but due to a complicated medical problem, could not conceive.

She decided to try IVF using donor sperm.

Several of her eggs were fertilized, but the first attempt at implantation failed. One “spare” embryo was frozen. Before a second implantation trial was made, her husband left her for his secretary. Feeling that she had nothing left to live for, she took her own life, leaving a letter to her sister giving her permission to try to become pregnant and give birth to the “spare” embryo.

Grisez’s response was extensive, respectful and supportive. He advised her that in bearing her sister’s child, she would “be acting in much the same way as a mother who volunteers to nurse at her own breast a foundling conceived out of wedlock, abandoned by his or her natural mother, and awaiting adoption by a suitable couple … Therefore, you certainly can try to save the baby without acting contrary to what the Church has taught regarding IVF and surrogate motherhood.”

Grisez’s response is both compassionate and thoughtful. It is also in agreement with a number of other Catholic bioethicists. After all, one might reason, is it not better to give a frozen embryo a chance at life rather than doom him to certain death? This is true in the abstract.

But is it true in the concrete situation where the only way to sustain life is through surrogacy?

Dignitas Personae finds the intention to save the child “praiseworthy,” but reminds of the “intrinsically illicit nature of surrogacy.” It adds: “The proposal that those embryos could be put at the disposal of infertile couples as a treatment for infertility is not ethically acceptable for the same reasons which make artificial heterologous procreation illicit as well as any form of surrogate motherhood.”

Donum Vitae had stated, “The freezing of embryos, even when carried out in order to preserve the life of an embryo — cryopreservation — constitutes an offense against the respect due to human beings …” Furthermore, it maintained, “The procreation of a new person … must be the fruit and the sign of the mutual self-giving of the spouses.”

It should not be altogether surprising, then, that Dignitas Personae teaches what it does about prenatal adoption. What, then, is to be done for the many thousands of frozen embryos? There is no answer to this question.

As the document stipulates, “It needs to be recognized that the thousands of abandoned embryos represent a situation of injustice which in fact cannot be resolved.” In other words, even if some frozen embryos could be rescued through prenatal adoption, the fact that they were frozen constitutes an irreparable injustice itself.

Those who trust that for every ethical problem there is an ethical solution, at least in the form of “the lesser of two evils,” may object.

John Paul II warned against creating such a situation when he made an “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 thousands and thousands of ‘frozen’ embryos which are and remain the subjects of essential rights and should therefore be protected by law as human persons.”

When justice is violated, traditionally, people seek rectification, even though the form of justice they seek is compensatory.

Now, we are faced with a form of injustice to human persons, as in the case of frozen embryos, where a moral resolution seems either impossible or highly unlikely. It becomes all the more imperative, therefore, not to create a situation in which an ethical solution becomes so problematic.

The stark question that may be asked, given the many thousands of frozen embryos that are killed each year, is this: Are biotechnicians creating situations that embody a veritable hell on earth?

Donald DeMarco is a professor emeritus at St. Jerome’s University and an adjunct professor at Holy Apostles College and Seminary

and Mater Ecclesiae College.