Last month, the Massachusetts Supreme Judicial Court (SJC) issued an opinion that added an entirely different and ominous meaning to the statement that "life begins at conception". Traditional understandings of procreation and parenthood also took a hit in a ruling that appears to open the door to the wholesale destruction of frozen embryos in Massachusetts.

The case of A.Z. v. B.Z. turned on the question of what happens to frozen embryos when the mother wants them implanted and the father does not. The four embryos at stake in the case were created consensually in 1991 by in vitro fertilization before the couple was divorced in 1995. The dispute over the embryos arose when the father, in the course of the divorce proceeding, learned of the mother’s desire to implant them and filed for an injunction preventing her from doing so against his wishes.

In 1996, a Massachusetts trial judge found for the father, citing the Tennessee Davis v. Davis decision in 1990 permitting the destruction of frozen embryos when the parents could not agree to their disposition. Noting that the embryos were frozen at the four-cell stage, the judge ruled that they did not possess the legal status of personhood in Massachusetts and thus were not protected by state custody laws. Despite the fact that the couple had signed consent forms directing that the embryos be implanted even should the parents separate, the judge found that the forms were not binding because of the divorce.

The judge held that absent an enforceable contract the constitutional rights of the couple had to be weighed, and concluded that the father’s rights prevailed over the mother’s rights because he would face "emotional burdens" from "unwanted parenthood" if the embryos were implanted. The judge also argued that implantation would be "unfair to a child who would enter the world unwanted by one of his or her parents."

The mother’s attorney appealed solely on the contract issue, and did not challenge the lower court’s personhood ruling. The father left the state and did not bother to contest the appeal. The SJC decided to hear the case directly, but delayed a hearing until 1999 because the lower court had lost certain records that needed to be reproduced. This lent urgency to the deliberations because the fertility clinic had advised the mother that any attempt to bring the embryos to term would be medically futile because of the mother’s age after June 2000.

In February of this year, the SJC issued a brief order in the father’s favor, promising to release a full opinion later. On March 31, Justice Judith A. Cowin, writing for the unanimous seven-member court, agreed with the trial judge that the consent forms were not binding on the father.

Yet she rejected the use of a balancing test that might have given mothers in some cases at least a theoretical chance to override a father’s objection to the implantation of their embryos. She found instead that implantation in any case where the couple is split over what to do with the embryos would "compel one donor to become a parent against his or her will", and that "forced procreation" was against public policy! Thus, frozen embryos could never be implanted when the father refuses consent, even if the mother proved the father had earlier made an otherwise enforceable agreement to consent.

Because the decision relied on an interpretation of Massachusetts public policy, the mother appears to have no recourse for appealing to the U.S. Supreme Court, and time is running out anyway for her to successfully bear the embryos, thus effectively rendering any appeal moot. News reports are mixed about whether the embryos will be thawed and left to die or destroyed outright.

What did Justice Cowin mean by concluding as a matter of law that implanting the already existing embryos would be "forced procreation"? Webster’s Dictionary defines procreation as "the act of begetting; generation and production of young". To beget, Webster’s indicates, is "to cause to exist".

As pointed out by a friend of the court brief filed by the Catholic Medical Association and other groups, "the ‘pro-creation’ involving the father’s bodily donation of sperm has already occurred with the father’s consent, resulting in the conception of the embryos." The reality of the embryos’ creation and existence will not change by some mysterious biological process if the father succeeds in preventing their implantation in his ex-wife’s womb. As the brief put it, "The embryos rest in frozen storage, real, not imaginary products of the father’s consensual participation in their beginning." A copy of the brief can be downloaded from www.macathconf.org under "latest news".

One finds the key to Justice Cowin’s remarkable legal conclusion in her discussion of the case’s facts. She informed the reader on the opinion’s first page that the court will refer to the embryos as "preembryos", and cited without any further explanation a 1994 report of the American Fertility Society. The Report has attracted substantial scientific criticism. Contrary to the consensus among embryologists, the Report coins the term preembryos in an effort to demonstrate that human beings do not begin to exist at fertilization.

Justice Cowin then sidestepped the debate over when life begins by asserting matter of factly and without argument that the embryos are not yet "conceived" or "procreated" and would not be unless and until they are implanted with the consent of both parents. As a consequence, the father is not yet to be considered a parent responsible for the survival of his children and the mother is not yet a parent with the right to custody of her children. Parenthood is, the opinion suggests, entirely a matter of where the children are physically located and of who wants to be in a social relationship with them rather than a consequence of biology.

And if the "donors" were in agreement rather than at odds, Justice Cowin’s opinion appears to free them to do whatever they please with their frozen embryos, including selling the embryos for research or destroying them, because they are not subject to the obligations of legal parenthood. The law would not require their implantation. This means that all of the frozen embryos in the Commonwealth have, in effect, no legal parents, and now certainly have no legal rights.

While the A.Z. v. B.Z. decision raises numerous problems in Massachusetts, it will undoubtedly have an impact outside of Massachusetts as well. As a precedent from an influential state court, the decision places an even greater wedge between biological reality and legal dictate. It ratifies (although it does not mention it) the controversial policy adopted a few years ago by the American College of Obstetricians and Gynecologists that redefines the moment of conception as occurring at implantation and not at fertilization. And it forces pro-lifers to reconsider any educational campaign that asserts, without further explanation, that life begins at conception.

The most disturbing aspect of the opinion is the value that it assigns to the children involved, that is, none at all in the law’s eyes. The decision is yet another unfortunate sign that "family" has become merely a construct of desire regardless of biology and no longer serves as a haven for the nurturing of children.

Massachusetts Catholic Conference, West End Place, 150 Staniford Street, Boston, MA   02114-2511

ph-617-367-6060 fx-617-367-2767  danielavila@macathconf.org