Medicine & Science

A chilling legal conflict over frozen babies

Last summer, the New Jersey Supreme Court became the fourth state’s  highest court to address the question of the disposition of frozen embryos in the event of the parents’ divorce. This recurring problem arises when a couple employs in vitro fertilization (IVF) to create embryos who are then frozen with the intention that they be implanted in the mother’s womb at a suitable moment so that a child might be born. But before that happens, the couple gets divorced, and then there is a dispute between them:  one parent wants the embryos to be implanted, the other wants them to be destroyed.

Readers may recall Solomon in the Book of Kings, who, having to decide which of two putative parents would get custody, opted for the one who was unwilling to see the child killed. Well, unlike that biblical precedent, our state supreme courts have unanimously decided in favor of the parent who is willing to see the tiny children destroyed.

The New Jersey case, J.B. v. M.B., involved seven frozen embryos created in May 1995. When the couple separated in September 1996,  J.B. (the wife) sought to have the embryos destroyed, while M.B. (the husband) counter-sued “to allow the … frozen embryos currently in storage to be implanted or donated to other infertile couples.”

The New Jersey Supreme Court sided with the wife who wanted the embryos destroyed: “Ordinarily, the party wishing to avoid procreation should prevail.” It quoted with approval the intermediate appeals court, which had stated, “in the present case, the wife’s right not to become a parent seemingly conflicts with the husband’s right to procreate. The conflict, however, is more apparent than real. Recognition and enforcement of the wife’s right [not to become a parent] would not seriously impair the husband’s right to procreate. Though his right to procreate … would be terminated, he retains the capacity to father children.”

What’s going on here? Hasn’t the husband already procreated the moment his sperm was intermingled with the egg and an embryo was formed? Once again, as in the Massachusetts case A.Z. v. B.Z., the court relies on the fiction that an unimplanted embryo has no parents. The court huffs, “We will not force J.B. to become a biological parent against her will.” But she already is a parent, and that by her own choice to participate in the IVF process.

What about the ability of the parents to decide by agreement in advance on the fate of the embryos? The New Jersey Supreme Court’s position is “to enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored pre-embryos.” “Ordinarily, the party choosing not to become a biological parent [sic] will prevail.” And so the embryos are to be destroyed, though the court allowed M.B. to pay for their continued deep freeze as an alternative. “Otherwise, the embryos are to be destroyed.”

One odd feature of the court’s opinion: “We express no opinion in respect of a case in which a party who has become infertile seeks use of stored pre-embryos against the wishes of his or her partner, noting only that the possibility of adoption also may be a consideration, among others, in the court’s assessment.” The consideration of the availability of adoption would, once again, weigh in favor of destroying the embryos. To their credit, two of the Supreme Court Justices, Verniero and Zazalli, object to that extra tilt in the direction of the Culture of Death, and would instead “permit an infertile party to assert his or her right to use a pre-embryo against the objections of the other party, if such use were the only means of procreation.”

This decision continues to use the Orwellian term “pre-embryo.” The language is all part of the general strategy to deny personhood to human beings from the moment of conception. This is the same ploy that is used in the debate over embryonic stem cell research or the attempts to distinguish so-called reproductive cloning from so-called therapeutic cloning in order to justify the latter, all of which involve the deliberate destruction of innocent human life. President Bush has it right: “Unborn children should be welcomed in life and protected in law.”

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About the author

Dwight Duncan

Dwight Duncan is an associate professor of constitutional law and bioethics at Southern New England School of Law in North Dartmouth, Mass. He filed an amicus brief on behalf of Massachusetts Citizens for Life in the Massachusetts frozen embryo case, A.Z. v. B.Z.