On December 21, 1999, the Catholic Medical Association, the American Association of Pro-Life Pediatricians, and the National Catholic Bioethics Center joined together to file a brief in a Massachusetts case, A.B. v. B.Z. (No. SJC-8098) involving the disposition of frozen embryos in a divorce proceeding. The organizations urged the Massachusetts Supreme Judicial Court to recognize the embryos as persons and children with protectable interests in implantation. 

The mother wants to implant the embryos in her womb against the father's wishes. The embryos were conceived in a petri dish from the sperm and eggs of the parents (who were still married at the time). The embryos are at the four-cell stage; the IVF clinic rated their chances of development after implantation as fair to good. The father sued to prevent the mother from implanting the embryos.

A trial judge ruled in 1996 that the embryos were not persons under the law, but retained only an inferior "special status" that did not override the father's disinterest in their survival. The 1992 Tennessee frozen embryo decision in Davis v. Davis adopting the "preembryo" argument influenced the trial court on this point. Thus, custody principles governing the disposition of children were ruled inapplicable. Balancing the interests solely of the parents, referred to as "gamete providers", the trial court found in favor of the father under considerations of equity. This, despite the existence of several consent forms signed by both parents stipulating that the embryos were to be implanted even in case of the couple's separation. The father's purported interest in "avoiding procreation" was held to outweigh the mother's right to procreate due to the "changed circumstances" of a failed marriage and divorce.

The mother appealed this ruling; the father has not responded to the appeal. Massachusetts Citizens For Life is the only other amicus to file a brief. The mother's attorney argues that the parties were free and able to contract regarding the disposition of the embryos, that a contract to implant the embryos in the mother was created, and that the contract is legally enforceable and should be honored. The mother did not challenge the trial court's ruling as to the personhood question, instead focusing solely on the contractual argument.

At oral argument, several members of the SJC expressed reservations about the enforceability of any contract in light of the father's procreational rights, even if a contract existed. It appears that the court will rule against the mother unless it is persuaded that the interests of the embryos are strong enough to override the father's disinterests.

The counsel of record, Luke Stanton, is the son of the late Dr. Joseph R. Stanton, a pro-life visionary and stalwart from Massachusetts.

Copies of the amicus brief and accompanying motion can be downloaded as instructed below.

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"Frozen Embryo" Amicus Brief

Accompanying Motion Describing Organizations Filing the Brief

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