Here’s What Arizona Wants to Do With Frozen Embryos

“Abandoned embryos represent a situation of injustice which in fact cannot be resolved...”

(photo: Pixabay/CC0)

Catholic circles generally marked July 25 as the 50th anniversary of the promulgation of Pope Paul VI’s encyclical, Humanae vitae. That anniversary overshadowed another, no less important one: it was the 40th birthday of Louise Brown, the first baby born alive as a result of in vitro fertilization (IVF).

It is in some ways paradoxical that a movement that began for sex without babies turned into one of babies without sex. Paradoxical, but not to be unexpected. For when one defies the central teaching of Humanae vitae, i.e., that there is an “ the inseparable connection, established by God, which man on his own initiative may not break, between the unitive significance and the procreative significance which are both inherent to the marriage act” (No. 12). Sex can join people and sex can give rise to life. Both meanings are inherent in the act as created by God. When man chooses by his own will (“on his own initiative”) to rupture that unity, the two meanings of sex remain. How they get spliced together on human initiative, however, is a matter of arbitrary will: babies without sex or babies without sex.

The Ford report of the so-called “Papal Birth Control Commission” was prescient in indicating that the logic which justified contraception also justified masturbation, fornication and homosexual activity, all pooh-poohed as an unjustified “slippery slope” by the revisionists but all of which was being defended by the same dissidents within a decade (resulting in issuance of Persona humana, addressing the same issues, in 1975). Artificial reproduction was not on most theologians’ horizons in 1968. But the same impetus that impelled advocates of “the Pill” in the 1960s was what drove IVF proponents in the 1970s: the “technological imperative.” If I am technically capable of doing something, I am morally allowed to do it. (I may have to invest the appropriate amount of handwringing and hire the “right” bioethicists to make appropriate grimaces before proclaiming the inevitably of “scientific progress” not “shackled to religion” and signing off).

I raise the issue of IVF because of an interesting moral development taking place in Arizona.

Jennifer Lahl has called the United States the “wild west” of reproductive technologies. One reason is because most of these technologies were arising in the 1970s and 1980s, in the wake of Roe et al. v. Wade. Legislators who were hoping that abortion would go away were loath to grab on to another controversial issue, where the media could paint opponents as standing astride not just “medical progress” but the “only chance” for infertile couples “to have a baby.” At first, IVF was largely unregulated; Big Fertility is still relatively laissez-faire.

The nexus to Roe is not insignificant for two reasons. One is simply the legal environment: Roe essentially negated any social interest in how a society renews itself, reducing “decisions of childbearing” to mother alone. The legal culture largely regards the idea that society has an interest in the mechanisms of its perpetuation as suspect if not outright strange.

The second reason Roe comes into play is that the technology of IVF quickly resulted in the fertilization of more ova than would normally be implanted into a woman. While the earliest days of IVF probably resulted in the fertilized ova voted “most likely to succeed” being implanted and the rest literally washed down the drain, eventually cryogenic freezing became a way to “preserve” – freeze – one’s frozen ova, both fertilized and unfertilized, for future use. What becomes of fertilized ova is the moral rub.

The issue first came to public attention in 1989 when Junior Davis divorced his wife, Mary Sue Davis. Seven embryos had been frozen, using each of their gametes. Faced with divorce, the courts needed to determine what the status of those frozen embryos was: [potential] children on ice or marital property? Mary Sue, who wanted the embryos for use to pursue future implantation, prevailed at the trial court level, where Judge Young recognized their humanity. His ruling was subsequently overturned at the appellate levels, because abortionists recognized that Young’s ruling was on a collision course with Roe’s de fide definata contention that the courts do not (and, essentially, cannot) determine when life begins. (The French geneticist, Jerome LeJeune, wrote a moving book about the Davis case, The Concentration Can: When Does Human Life Begin?)

Junior Davis’s claim against allowing Mary Sue to implant the embryos was that he did not want to be made a father without his consent. It has also been the general principle on which other courts have followed the Davis appellate courts’ decisions in leaving frozen embryos in a cryogenic half-world: alive, but not able to move forward in life.

Arizona seems to have come up with a different solution.

Asserting the murky interest that Roe admitted states might have in the “potential” life of the fetus, Arizona has now specified that custody of frozen embryos in divorce proceedings should be awarded to the party intending to help them “develop to birth.”

Arizona’s law represents a 180 degree course change from the general trajectory of post-Davis law—which basically left disputed frozen embryos in the freezer or required their destruction—by giving priority to the party that wants to bring the embryos to birth rather than leave them in their status quo or worse. In doing so, the law takes aim at the Junior Davis thesis of being “forced into parenthood.”

A pro-life approach to the question would admit that both parties are already parents, so there is no question of being “forced” into it. What Davis instead institutionalized was the compartmentalization of parenthood into genetic, gestational and social functions, while implicitly making birth the defining moment of establishing legally valuable life. I want to make observations about these points.

Davis essentially made frozen embryos into just another form of marital property. It is a unique form of marital property because it has the potential of developing into something further, and that potential – post-birth life – has been used to assert the parental right to “avoid” parenthood (i.e., bringing a frozen embryo to birth) trumps the interest of the state in not leaving frozen embryos in indeterminate suspended animation or worse. (Fetuses have no legal interests to assert). But notice the contradiction there: although the courts deny that the unborn are alive and that states at best have some nebulous interest in “potential” prenatal life, it is precisely the actuation of that “potential” that has justified its destruction. A father never has the right to prevent the prenatal destruction of his unborn child (see Planned Parenthood v. Danforth) but he sometimes has the right to require the child’s destruction if the child’s birth (his “becoming a father”) clashes with his current plans.

Arizona’s law shifts the burden from the party that does not want the “potential” life to proceed further to the one that does. The father’s decision-making role regarding parenthood seems mostly attenuated and negative: not being “forced” into “becoming” a parent. The mother’s situation is different. If the genetic mother of the child wants to gestate the child, Arizona’s new law poses no problem: she can.

But what if she does not? If the child’s genetic mother does not want to gestate the child, but its father does and has found another woman willing to do so, what interest prevails? The father as one who wants to help them “develop to birth?” Against the genetic mother who does not want to be “forced into parenthood?” But, since she is not gestating the child and Roe is all about bodily integrity, then how is she being “forced” into parenthood, especially when her body is not involved? If you say because of the genetic factor, then we are back to the inherent contradiction of Roe: if genetic humanity is insufficient to establish the child’s right to life, why is it sufficient for a genetic relationship to trump any other consideration about the child’s welfare? In other words, does the “right” Roe establishes end with a woman’s body no longer being encumbered, or does it extend to extinguishing any “potential” of that prenatal life to actuate itself? Is a pregnant woman’s right not to have her body “used,” or a right to have a dead child at all costs?

From a Catholic perspective, Arizona’s new law also poses moral problems. Because Catholic moral theology and theological anthropology do not want to slice and dice parenthood into genetic, gestational and social components, the Church recognizes that the idea of “embryo adoption” – another person “adopting” an abandoned embryo by bringing him/her to birth, “presents various problems.” Recognizing that there may be anywhere from half a million to a million such beings worldwide, the Church finds that “abandoned embryos represent a situation of injustice which in fact cannot be resolved” (Dignitatis personae, No. 19).

While there is a certain American pragmatism that wants “a practical solution,” the problem here is that there appears to be currently no moral solution to resolve the humanitarian crisis bequeathed by the technological imperative. Rather than having recourse to some technological “solution” (which would, in fact, probably never be able to address the sheer magnitude of the frozen embryo problem as well as possibly perpetuate the issue by appearing to offer some fix to the dilemma of abandoned embryos) we should in fact recognize that technology allowed us to play God with neither His omniscience nor omnipotence – and, like Humpty Dumpty, not every fertilized egg can seemingly always be made whole again.

John M. Grondelski (Ph.D., Fordham) was former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views expressed herein are exclusively his.