by Jennifer Lahl, CBC President
I’ve said it before, and I’ll say it again: it almost always starts with an emotional story.
The
latest situation is an embryo custody battle in Arizona. It highlights
the depth of real human emotions connected to having children and
building a family, and the ways in which human lives are affected by a
justice system that seeks to do what is right in the midst of a true
ethical mess. As with all embryo custody battles, there are never any
winners. There are plenty of losers, though, and the embryos have the
most to lose by far.
This case, of course, tugs at our heartstrings. In 2014, at the age of thirty-three, Ruby Torres was diagnosed with triple negative breast cancer—a very aggressive breast cancer that has the lowest five-year survival rate
of all breast cancers. Torres was engaged at the time of her diagnosis.
Because her cancer treatments might leave her infertile, she and her
then-fiancé, Joseph Terrell, made the decision to undergo IVF to create
embryos and freeze them for later use. A contract was signed stipulating
that neither Torres nor Terrell “could use the embryos without the
written permission of the other person.” Soon after, they were married.
In
August 2016, Terrell filed for divorce and told the court that he did
not want to have children with Torres. The case is now in the courts of
Arizona, where there is no case law on the disposition of surplus
embryos once they have been created. On one side, Torres, who is now
infertile, is fighting for her “right to have her own biological
children.” Terrell, on the other side, is fighting for his “right not to
parent.”
A
Maricopa County Family Court judge recently ruled that the embryos must
be donated to a couple seeking embryo adoption or to a fertility clinic
since Torres and Terrell are not in agreement. Torres has filed a
notice of intent to appeal the ruling to the Arizona Court of Appeals.
There Ought to Be a Law
How
can we keep cases like this from happening in the future? Perhaps the
simplest way would be for the United States to adopt a policy similar to
Germany’s. The law there prohibits the creation of so-called surplus
human embryos. In Germany, only three embryos can be created in one IVF
cycle, and they must all be transferred into the mother’s womb.
But
embryo donation and adoption is big business in the United States.
Current estimates are that there are nearly three-quarters of a million
frozen embryos here. In addition, approximately 28 million federal dollars
are funding embryo donation programs, thus creating a whole new
industry, which shows no signs of being interested in putting itself out
of business.
Our
country is a long way from passing a law like Germany’s, in part
because we are so far down the path of embracing embryo adoption. We are
gripped by the emotional stories of “snowflake” children. Recall the
George W. Bush-era embryo battles over surplus human embryos being
either destroyed for cures or adopted into loving homes. Almost no one
pushed for a law banning the creation and freezing of human embryos
then—and almost no one is pushing for it now—which is one of the reasons
why this case in Arizona is so troublesome for the courts.
Souls on Ice
At the height of those embryo battles, Liza Mundy wrote in Mother Jones
about “Souls on Ice.” That was 2006, when the count of frozen embryos
was “only” about half a million. Mundy raised the question of embryo
disposition after speaking with a California couple who had fourteen
surplus frozen embryos. What should they do with them? Should they “Give
them away to another couple, to gestate and bear? Her own children’s
full biological siblings—raised in a different family? Donate them to
scientific research? Let them . . . finally . . . lapse?”
That was eleven years ago. Now the number of souls on ice is rapidly approaching three-quarters of a million.
Human
life was not meant to be created in the lab, put on ice, and left for
years and years. Many frozen embryos do not survive the thawing process.
As Paul Ramsey
explained back in 1972, freezing human embryos would “constitute
unethical medical experimentation on possible future human beings, and
therefore it is subject to absolute moral prohibition.” Though the
medical community failed to heed his warning, Ramsey’s words are still
true:
My only point as an ethicist is that none of these researchers can exclude the possibility that they will do irreparable damage to the child-to-be. And my conclusion is that they cannot morally proceed to their first ostensibly successful achievement of the results they seek, since they cannot assuredly preclude all damage.
In
other words, it is thought to be safe to freeze, thaw, and transfer
human embryos into wombs, but the truth is that we are performing a
highly experimental procedure on human beings who cannot in any way
consent to the procedure they are undergoing. In fact, research is being
done on these children, following them over the course of their lives
to see how they fare. In what other circumstance would such treatment
not be considered horrific?
How can we clean up this mess?
Parents, Come Get Your Children!
As
I mentioned above, a good place to start is by legally limiting the
number of embryos that can be created and prohibiting the freezing of
embryos, as Germany does. But what about the embryos currently in
cryopreservation storage? We need a policy that would require the people
who created the embryos to make a decision. They can choose to transfer
the embryos into their mother’s body, donate them to an embryo adoption
agency, or allow them to thaw and die. I am open to discussions of ways
to incentivize transferring the embryos into the mother—this, in my
view, is what should happen, or being donated for embryo
adoption—but I am not open to having the embryos donated to scientific
research where they will be destroyed, killed.
The
human embryos who are currently abandoned in freezers were created for
the purpose of building families. The simple answer is for parents to
come and get their children. If you choose to abandon your embryos—that
is, your children—you can opt to “donate” them to someone who is willing
to bear and raise your child.
Embryo
adoption, though, is fraught with its own set of ethical issues. Anyone
choosing to donate their unwanted embryos or to adopt such embryos must
enter into such a decision with a clear mind about the problems that
are likely to arise.
Children
created in this way will face many difficult and troubling realities as
they come to know and understand their conception stories. They must
come to terms with the fact that they were created, abandoned, seen as
surplus and unwanted, and ultimately given away by their biological
parents. This can be an enormous burden for a child to carry. Given my
extensive work on issues around third-party conception—egg donation, sperm donation, and surrogacy—I
know all too well how likely it is that these children will grow up
longing to know their biological parents, siblings, and larger family
while at the same time feeling abandoned and perhaps even unloved.
Who Has Moral Obligations to Frozen Embryos?
Finally,
I hold that we, the general public, have no moral obligation to rescue
abandoned frozen embryos, just as we have no obligation to donate a
kidney. Such acts—supererogatory acts—are those that are good but not
morally required. I do believe, as I mentioned above, that the parents
who created the embryos have a moral obligation to reclaim their embryos
and have them transferred into the mother’s uterus. But that obligation
does not extend beyond the parents who brought them into being.
Physicians who assisted in creating and freezing embryos have broken
with the Hippocratic roots of medicine, inevitably harming some
embryos—that is, the ones that do not survive the freezing and thawing
process.
Depending
on where you are on the religious spectrum, you will find variations on
the exact nature of our moral duty to abandoned embryos and their right
to life. My own recommendation is to follow a pattern that Lutheran
theologian Gilbert Meilaender, Senior Research Professor at Valparaiso
University and Scholar at The Paul Ramsey Institute, recommends in his most recent book, Not by Nature but by Grace. He writes,
What Christians, at least, should want [with respect to abandoned embryos] is a brief religious ritual to accompany their dying, a liturgy in which we commend these weakest of human beings to God, though perhaps also a liturgy in which with the psalmists we ask God how long his providence will permit this to continue. . . . We demonstrate our humanity by accompanying frozen embryos to their death and committing them liturgically to God’s care.
But we must recognize, as the Catholic encyclical Donum vitae states,
In consequence of the fact that they have been produced in vitro, those embryos which are not transferred into the body of the mother and are called “spare” are exposed to an absurd fate, with no possibility of their being offered safe means of survival which can be licitly pursued.
Never
to know the nurturing environment of their mothers’ wombs and never to
be lovingly raised by their mothers and fathers, such embryos suffer an
absurd—and tragic—fate indeed.
This article originally appeared on The Public Discourse.
