Human Embryo

Adoption
B io t e c h n o l o g y , M a r r ia g e ,
and t h e R i g h t t o L if e

E d it e d by
R e v . T homas V B e r g , L.C.
AND
E dward J. F urton

WITH A FOREWORD BY ROBERT P. GEORGE

The National Catholic Bioethics Center

Philadelphia
The Westchester Institute for Ethics
& the Human Person
Thornwood, New York
 «

The covet photograph shows one of the embryos that South Korean
scientist W S. Hwang claimed to have produced through cloning. Hwang’s
cloning claim has been exposed as a fraud, but human embryos such as
this one are routinely created by in vitro fertilization in efforts at assisted
reproduction, and are sometimes designated for research in which they
are deliberately destroyed.
N ihil Obstat
Rev. Msgr. Francis A. Barszczewski, S.T.L.
Censor Librorum
Imprimatur
* Justin Cardinal Rigali
Archbishop of Philadelphia
June 30, 2006
The Nihil Obstat and Imprimatur are a declaration that
a book or pamphlet is considered to be free from doctrinal
or moral error. It is not implied that those who granted the
Nihil Obstat and Imprimatur agree with the contents, The editors are grateful to
opinions, or statements expressed therein.
Charlotte and Gene Zurlo
Cover design: Susan Naab
Cover photograph: W S. Hwang/Corbis fo r helping to make this volume possible.
Special thanks to Rebecca Robinson. Thank you fo r jo u r stewardship o f initiatives
© 2006 The National Catholic Bioethics Center and
The Westchester Institute for Ethics and the Human Person that bring the battle fo r a culture of life
ISBN-10: 0-935372-50-4 to the world of ideas.
ISBN-13: 978-0-935372-50-2

Unless otherwise noted, quotations from official Church documents are from
the Vatican English translation, published online at www. Vatican.va.
Library of Congress Cataloging-in-Publication Data
Human embryo adoption : biotechnology, marriage, and the right to life /
edited by Thomas V. Berg and Edward J. Furton ; with a foreword by Robert
P. George,
p. ; cm.
Includes bibliographical references.
ISBN-13: 978-0-935372-50-2 (alk. paper)
ISBN-10: 0-935372-50-4 (alk. paper)
1. Human reproductive technology—Religious aspects— Catholic Church. 2.
Human embryo—Transplantation. 3. Adoption-Religious aspects—Catholic
Church. I. Berg, Thomas V. II. Furton, Edward James. III. National Catholic
Bioethics Center. IV. Westchester Institute for Ethics and the Human Person.
[DNLM: 1. Embryo Transfer—-ethics. 2. Adoption. 3. Catholicism. 4.
Embryo Disposition— ethics. 5. Pregnancy—ethics. WQ 208 H9178 2006]
RG135.H855 2006
6'16.6,9206—-dc22
2006031818
 C ontents

Foreword
Robert P. George
xi

Introduction
Rev. Thomas V. Berg, T.C. 1

1
Virtuous Parenting and Orphaned Embryos
John Berkman 13

2
Some Moral Contraindications to
Embryo Adoption
Rev. Tadeus^ Pacholc^yk 37

3
Becoming Pregnant or Becoming a Mother?
Embryo Transfer With and W ithout a
Prior Maternal Relationship
Helen Watt 55
 4 10
The Embryo Rescue Debate: The Female Act o f Allowing
Impregnating Women, Ectogenesis, and an Intromission o f Impregnating Kind
Restoration from Suspended Animation Mary Geach 251
Nicholas Tonti-Filippini 69
11
5 The Moral Licitness o f Adopting
O n the Catholic Vision of Frozen Embryos, with Answers to Objections
Conjugal Love and the Monica Edpe% Barahona,
Morality o f Em bryo Transfer Rev. Ramon Eucas Eucas, E C , and
Rev. Nicanor Pier Giorgio Austriaco, O.P. 115 Salvador Antunano A k a 273

6 12
The Object o f the Acting Woman O ur Moral Obligation to
in Embryo Rescue the Abandoned Embryo
William E. May 135 Rev. Peter F. Ryan, S.J. 297

The Nuptial Womb:

O n the Moral Significance o f
Being “W ith Child”
Afterword
Christopher Oleson 165
Rev. Thomas V. Berg, E C., and Edward J. Furton
8 327
A Defense by Analogy of
Bibliography 333
Heterologous Embryo Transfer
E. Christian Bmgger 197 Contributors 345

9
Heterologous Embryo Transfer
and the Meaning o f “Becoming a M other”
Rev. Thomas D. Williams, E C . 229
 i

T h e M o r a l L ic it n e ss o f
A d o p t in g F r o z e n E m bryos ,
w it h A n sw er s t o O b je c t io n s

Mdnica Lopez Baranona,

Rev.Ramon Lucas Lucas, L. C.,
*1 ana Salvador Antunano AJea
i
l!
till
11
;M1l
U The plight o f frozen embryos is not new, but it con­
HI tinues to be o f deep concern. Thousands o f human beings
remain in an unnatural state, and so we ask the question, Is
III!
it licit to transfer these embryos into the wombs o f women
Ill
Illi who did not participate in in vitro fertilization (TVF), but
iiiiiij are willing to bring the embryos to term? Obviously, we
11;
pose this question from an anthropological stance that
: v! regards these frozen embryos as human beings, as persons
il o f absolute value, possessing their own dignity
T ?!:li We answer this question in the affirmative, and develop
our position by responding to the m ost frequent objections
!
raised against heterologous embryo transfer (HET). H ow ­
; ‘I’
j ■: ever, before explaining and responding individually to the
objections, it will be helpful to analyze and distinguish the
various hum an acts entailed in this m oral conundrum ,
broadly considered, and then proceed to the moral classifi­
cation o f each. First, a definition o f terms:

lit
f !
 4
THE LICITNESS OF EMBRYO ADOPTION
1. In vitrofertilisation'} IVF is a technique directed toward
achieving the fertilization o f a human egg apart from the
natural process o f sexual intercourse between a man and a
woman. It is a morally illicit act according to three funda­
mental criteria: respect for the human embryo,2 the nature
o f human sexuality and the conjugal act, and family unity.
2. The refusal to transfer the IV F embryo into the maternal
womk This is a human act related to IVF b u t essentially
distinct from it, in that the refusal can be perform ed by a
different subject. It is ethically objectionable because it
deprives the embryo o f the possibility o f developing within
its natural environment and conditions.
3. Cryopreservation'. This human act is likewise distinct
from the previous two, in that it can be perform ed by a
different subject. It consists in a suspension o f embryonic
development. Through freezing in liquid nitrogen, generated
human individuals are preserved at a very low temperature
(-196 °C) in almost total biological immotility.3The techniques
o f both freezing and thawing can cause irreparable harm to
embryos, resulting in their death.4 Although major advances
in human embryo cryopreservation have been achieved, mor­
1P. C. Steptoe, R G. Edwards, “Birth after the Reimplantation
of a Human Embryo,” 1^7/^/2.8085 (August 12,1978): 366.
2Congregation for the Doctrine of the Faith, Donum vitae
(February 22,1987), 1,6.
3J. Mandelbaum et al. “Cryopreservation in Human As­
sisted Reproduction Is Now Routine for Embryos but Remains a
Research Procedure for Oocytes,” Human Reproduction 13 Suppl
3 (June 1998): 161-174; G. H. Zeilmaker et al., “Two Pregnancies
following Transfer of Intact Frozen-Thawed Embryos,” Fertility
and Sterility 42.2 (August 1984): 293~-296.
4 G. D. Smith, C. A. Silva e Silva. “Developmental Conse­
quences of Cryopreservation of Mammal Oocytes and Embryos,”
ReproductiveBiomedicine Online 9.2 (August 2004):171—178; M. Auroux
et al., “Is Embryo Cryopreservation Really Neutral? A New
274
MONICA LOPEZ BARAHONA ET AL
tality rates for frozen embryos after thawing are reported to
be between 30 and 50 percent.5Thus, in the thawing process
necessary for performing HET, many embryos die. H ow ­
ever, if embryos remain frozen for an indefinite length of
time or are thawed without being given the chance o f being
gestated, they will all die. Therefore, H E T is the only alterna­
tive that may save some o f their lives.
O n the other hand, cryopreservation is a morally illicit
act, which “constitutes an offence against the respect due to
human beings” and an abusive interference in the life cycle.6
A human life, once begun, must continue its natural course,
Long-Term Effect of Embryo Freezing in Mice: Protection of
Adults from Induced Cancer according to Strain and Sex,” Repro­
ductive Toxicology 18.6 (August—September 2004): 813—818; J. Tao
et al., “Cryopreservation of Human Embryos at the Morula Stage
and Outcomes after Transfer,” Fertility and Sterility 82.1 (July 2004):
108-118.
5W R. Boone et al., “Changes in the Freezing Protocol for
Human Zygotes Alter Embryo Development and Pregnancy Rates,”
Fertility and Sterility 83.1 (January 2005):182—188; Z. O. Amarin, “A
Flexible Protocol for Cryopreservation of Pronuclear and Clone
Stage Embryos Created by Conventional In Vitro Fertilization and
Intracytoplasmic Sperm Injection,” European Journal of Obstetrics,
Gynecology, and Reproductive Biology 117.2 (December I, 2004): 189-
193; and J. Ding et al., “Improved Outcome of Frozen-Thawed
Blastocyst Transfer with Menezo's Two-Step Thawing Compared
to the Stepwise Thawing Protocol,” Journal of Assisted Reproduction
and Genetics 21.6 (June 2004): 203—210.
6See Donum vitae^I, 6; and John Paul II, Discourse to Partici­
pants in the Symposium “FLvangelium vitae and Law” (May 24,1996),
L ’OsservatoreRnmano, English ed. (May 29,1996). Cryoconservation
of embryos is considered an integral part of the IVF process, be­
cause it means embryos that have not been transferred to the mother’s
womb can be saved (rather than destroyed), with a view to possible
implantation in the future if the parents so choose. See also A. L.
Bonnicksen, “Embryo Freezing: Ethical Issues in the Clinical Set­
ting,” Hastings Center Report 18.6 (December 1988): 26-30; and A.
275
 i
THE LICITNESS OF EMBRYO ADOPTION
and no one can licitly interrupt or “suspend” it. Temporal
and historic continuity is an intrinsic good o f human corpo­
real life, proper to the person and a fundamental right. Age
has more than a temporal connotation: it is a coordinate o f
personal life that identifies it in a corporeal (i.e., spatiotem­
poral) condition. To alter it, causing a void in the duration o f
a person’s existence, is a choice and an imposition. To put the
life cycle o f a human embryo on hold is an expression o f the
“will to power” by which one person decides the fate o f
another who is weak and defenseless.
Cryopreservation does not “interrupt” life: the life is
“there,” frozen, deposited, like a consumer product, along­
side many others, “ready when needed.” Cryopreservation
offends the dignity o f the embryo, relegating its worth to the
value o f its use, which is likewise subject to expiration, given
the fact that no one can guarantee its integrity and vitality, on
account of the techniques and timing of freezing and thawing.7
Power is thus followed by violence as “expired” and “unus­
able” lives are discarded. The practice also manifests an ulte­
rior negative act: abandonment o f cryopreserved embryos
by the natural parents.8Most cryopreserved embryos are not
Nyboe Andersen et al for the European IVF Monitoring Programme
of the European Society of Human Reproduction and Embryol­
ogy (ESHRE), ‘Assisted Reproductive Technology in Europe, 2000:
Results Generated from European Registers by ESHRE,” Human
Reproduction 19.3 (March 2004): 490-503.
7BLEFCO [French Federation of IVF Biologists], “Em­
bryo Freezing: Status Survey in France (1985—1993)” [in French],
Contraception, Ferfilite, Sexuaiite 24.9 (September 1996): 674—677;
and Mandelbaum et a1., “Cryopreservation in Human Assisted
Reproduction.”
8 G. Moutel et al., “Developments in the Storage of Em­
bryos in France and the Limitations of the Laws of Bioethics:
Analysis of Procedures in 17 Storage Centres and the Destiny of
Stored Embryos ” Medicine mdLaw 21.3 (2002): 587—604.
276
MONICA LOPEZ BARAHONA ET AL.
transferred either because the transfer o f embryos immedi­
ately after IVF was successful or because the parents have
changed their minds.
4. The thawing of embryos'. This act is different from the
other three, and again, it is im portant to distinguish it pro p ­
erly from the other human acts involved. The first three
acts—-IVF, the refusal to transfer embryos into the maternal
womb, and embryo cryopreservation— are in themselves
ethically wrong. Em bryo thawing is different from these. It
can be judged either positively or negatively, depending not
only on the object o f the act but also on the circumstances
and the aim for which the subject acts.
O ne has to keep in mind that in the moral evaluation
o f an act, there are always three fundamental elements to
consider: (1) the object o f the act, which is to say, the
intrinsic finality o f the act itself (finis operis)\ (2) the
circumstances in which the act is done and the subjective
conditions o f the actor, w hich can be aggravating or
attenuating; and (3) the intention, or aim, o f the subject
who acts (finis operantis).
The act o f embryo thawing is in itself good, inasmuch
as it offers the possibility o f the embryo’s return to its nor­
mal biological state. But it may also be good on account o f
the subject’s intention o f returning the embryo to its natural
state o f development in a womb. I f it is done to manipulate
or eliminate the embryo, however, or if the embryo, once
thawed, is not offered the possibility o f a womb, the act of
thawing is in itself illicit, for it is then the direct and formal
cause o f the embryo’s death.9
5. Heterologous embryo transfer. Here again, one has to
properly distinguish the moral acts that are performed:
* IV F is in itself an illicit act.
9 We will come to this point later in one of the objections.
277
 i
THE LICITNESS OF EMBRYO ADOPTION
• The refusal to transfer the embryo into the maternal
womb is in itself an illicit act.
• Cryopreservation o f the embryo is in itself an illicit
act.
• A bandonm ent o f the cryopreserved embryo by the
natural parents is distinct from the previous acts and
is also illicit in itself.
• H E T on the part o f prospective parents is an act
distinct from the previous ones, and is in itself licit.
Each o f these acts is properly independent. I f one does not
want to fall into a consequentialist form o f argumentation,
then one must analyze the intrinsic structure o f each distinct
moral act. The governing criterion is the primary and fun­
damental good: the life of the embryo. From acts which are
intrinsically illicit that precede it, one cannot prevent a licit
act, like HET, from following, nor can H E T be deemed
illicit simply because the others are illicit. H E T cannot be
imposed on anyone, o f course, but neither should it be
impeded. Still less should this act o f embryo transfer (per­
formed out o f love) imply any justification o f the previous
negative acts or any affirmation that the preceding acts are
part of a “norm al” process.
H E T is different from the other acts and is done as an
extreme means to save the principal good: life. In a situation
that is already extreme and immoral, which is neither desired
nor justified by those who pursue HET, the prospective
parents offer an act o f love and generosity which is in itself
good. So, just as the adoption o f a child does n o t justify any
abandonment by the natural parents, and does not constitute
a disparagement o f natural maternity, so is it in the case of
saving an embryo by means o f HET.
Certainly this is not the ideal situation for embryos.
The ideal situation would be if they were n o t artificially
generated or frozen. And in the already immoral situation
278
MONICA LOPEZ BARAHONA ET AL.
o f cryopreservation, the “ideal” would be for the natural
parents not to abandon them, but to accept their transfer
into the m other’s womb.10 But the lack o f these “ideal”
solutions m ust not lead us to brand as immoral the act o f a
woman who generously attempts in some way to “m end”
these illicit acts through H E T .11 N or ought this act o f
generosity be hindered, for it constitutes, in fact, the only
way for the embryo to continue its vital development.
ANSWERS TO OBJECTIONS
Having established these fundamental criteria, we can
now analyze the m ost frequent objections to H E T .12
10G. Herranz, “La Destruccion de los Embrion.es
Congelados,” Personay Bioe'tical .1 (July—September 1997): 57-66.
11Diverse authors consider this option a licit one. See, for
example, German Grisez, The Way of the Lord Jesus, vol. 3, Diffi­
cult MoralQuestions (Quincy, IL: Franciscan Press, 1997), 242; M.
P. Faggioni, “La questione degli embrioni co n g elatiUOsservatore
Romano (July 22—23,1996): 6; William E. May, Catholic Bioethics and
the Gift ofHuman Ufe (Huntington, IN: Our Sunday Visitor, 2000),
94—108; Helen Watt,“A Brief Defense of Frozen Embryo Adop­
tion,” National Catholic BioethicsQuarterly 1:2 (Summer 2001), 151—
154; Francis de Rosa, “On Rescuing Frozen Embryos,” Unacre
Quarterly 69.3 (August 2002): 228—260; and John Berkman: “The
Morality of Adopting Frozen Embryos in Light of Donum vitae”
StudiaM.oral.ia 40.1 (June 2002): 115—141, “Gestating the Embryos
of Others: Surrogacy? Adoption? Rescue?” National Catholic Bio­
ethicsQuarterly 3.2 (Summer 2003): 309—329, and “Reply to Tonti-
Filippini on "Gestating the Embryos of Others,’” National Catho­
lic BioethicsQuarterly'})A (Winter 2003): 660—664.
12These objections are expressed, for example, in William B.
Smith, “Rescue the Frozen?” HomileticandPastoralReview96 (October
1995): 72—74, and “Response to Geoffrey Surtees,” Homiletic and
PastoralRe.mew96 (August—September 1996): 16—17; Nicholas Tonti-
Filippini, “Frozen Embryo ‘Rescue,’” UnacreQuarterly 64.1 (Febru­
ary 1997): 3-4; Mauro Cozzoli, “The Human Embryo: Ethical and
279
 t
THE LICITNESS OF EMBRYO ADOPTION
Objection 1:According to the natural moral law and Catholic morality,
the only licit way for a woman to become pregnant is through the
conjugal act. H E T makes it possible to becomepregnant outside the
context of the conjugal act and is\ thereforei, immoral.
In a normal situation, the beginning o f pregnancy is
the beginning o f a human life. In a normal situation, preg­
nancy following upon the conjugal act is the only licit way
for the life o f a human being to begin and develop. But in
the case o f cryopreserved embryos, we face an abnormal
and totally different situation. Since the time o f Aristotle, it
has been the duty o f prudence to apply universal moral norms
to particular situations, if one does not want to fall into a
moral essentialism. This does not mean that a good end
justifies an act that has an intrinsically evil object, nor that
H E T leads to the abolition of the principle invoked in the
objections. Rather, the matter is placed on another level,
because the object o f the moral act is different H um an life
has already started in an illicit way. Pregnancy and maternity
are not dissociated from the conjugal act by the pursuit of
HET; they have already been dissociated from the conjugal
act by the illicit act o f IVF.
This objection is valid when applied to IVF, but not
w hen applied to H E T as an extrem e solution to the
Normative Aspects” [in Italian], in Identitd e Statuto dellEmbriom
Umc7.no, ed. Pontificia Academia Pro Vita (Vatican City: libreria
Editrice Vaticana, 1998), 266—270; Mary Geach, “Are There Any
Circumstances in Which It Would Be Morally Admirable for a
Woman to Seek to Have an Orphan Embryo Implanted in Her
Womb? (1)” in Issuesfora CatholicBioethic, ed. Luke Gormally (Lon­
don: The Linacre Centre, 1999), 341-346, and “Rescuing Frozen
Embryos,” in What Is Man, O Eord? The Human Person in a Biotech
Age, ed. Edward J. Furton (Boston: National Catholic Bioethics
Center, 2002), 217-230; and Hadley Arkes, “May Embryos Be
Adopted?” Crisis 18.3 (March 2000): 12.
280
MONICA LOPEZ BARAHONA ET AL.
cryopreservation already effected. HET, considered in its
object (finis opens), does not dissociate, nor is it done to
dissociate (finis operantis), the pregnancy from the conjugal
act; rather, it saves (finis opens) and it wants to save (finis
operantis) a life already conceived, at whose origin the disso­
ciation already took place. H E T entails within itself the
possibility o f saving an existing life.
The generation o f embryos through IVF techniques
is not an act o f procreation which corresponds to the mutual
self-giving o f a man and woman in an act o f conjugal inter­
personal love. Therefore, it is an act proper not to hum an
sexuality but to technology. Frozen embryos generated in
IV F clinics are “produced.” They are n o t procreated.
Em bryo transfer into a woman’s womb does not alter or do
violence to the woman’s sexuality or matrimonial bond. The
good that one is trying to save in H E T is not matrimony—
which is not at all damaged by the acceptance o f a child,
but is rather elevated and ordered thereby to its end. W hat
one is trying to save in FIET is the frozen embryo, whose
life is at stake; and the good o f the em bryo’s life always
prevails (according to Catholic morality) in those cases where
sexuality has been violated.
Such is the case when a married or single w om an
becomes pregnant after being raped. From the point o f view
o f Catholic morality, abortion can never be recommended.
The good o f the embryo’s life always prevails, not the harm
to the m other’s sexuality or her matrimonial bond (if there
is one). Moreover, Catholic morality does not question the
remarriage o f a widow or the adoption by her husband o f
the children procreated in the sexual acts o f her previous
marriage, not even when the widow is pregnant with her
first husband’s baby. W hen a woman becomes pregnant as a
consequence o f matrimonial infidelity, the same principle
applies. N o t even in this case does Catholic morality recom ­
m end abortion, even though the woman’s sexuality and
281
 i
THE LICITNESS OF EMBRYO ADOPTION
matrimonial bond have both been seriously compromised.
Again, the good o f the embryo’s life prevails.
Moving from the philosophical to the theological plane,
if maternity were intrinsically illicit in itself in cases where it
was not initiated by a conjugal sexual act o f spouses, it is hard
to see how the Virgin Mary’s maternity could escape this diffi­
culty. Although it is obviously a supernatural and miraculous
event that is totally different from natural human maternity,
and although the supernatural is beyond the natural, Mary’s
maternity cannot constitute something intrinsically immoral.
D onum vitae states, “the bond existing between husband and
wife accords the spouses ... the exclusive right to become father
and mother solely through each other.”13
In the case o f Mary, she becomes a mother, but not
through her husband Joseph. In the case o f HET, the woman
becomes a mother, but without having conceived the child.
O ne must conclude that if maternity that did n ot arise from
a conjugal act were intrinsically immoral, it would not have
been possible in the plan o f redemption. If maternity that
does not arise from a conjugal act is not, then, intrinsically
im m oral, then m aternity arising from H E T cannot be
deemed illicit on this basis.
The decisive point is that the object o f the moral act
in H E T is n o t heterologous procreation. Heterologous
embryo transfer cannot be considered part o f procreation.
Procreation necessarily refers to an event that consists in
passing from nonbeing to being; there are no “partially pro­
created” persons. Therefore, an embryo’s implantation in a
woman’s womb is not an act o f procreation, because the
im planted baby has already been procreated. Similarly,
gestation is not procreation, nor is it part o f the sexual act.
It is an im portant biological phenom enon, with profound
psychological, emotional, and personal repercussions, but it
13Donum vitae, II (A), 2.
282
MONICA LOPEZ BARAHONA ET AL.
is not procreation. To save a child’s life, gestation can even
be maintained in a m other w ho has suffered encephalic
death, w ithout thus violating any moral norm . O ne could
even hypothesize that, in a future scenario where an artificial
womb has been developed, it would be morally licit to offer
a frozen embryo the possibility o f leaving its suspended
state and completing its development by that means.
Objection 2: H E T subverts the concept of maternity and filiation
because it legitimises the separation of the biological, affective, and
relational dimensions ofprocreation.
The embryo has already been generated without the
necessary bond o f the biological, affective, and relational
components. Far from legitimizing this separation, H E T
would constitute a remedy in a context that effectively grants
the embryo not only a biological place but also a human
environment among those who receive him. That is why
HET, as we are here considering it, will require adequate
legislation. H E T actually presupposes the biological, affec­
tive, and relational components o f procreation and tries to
make up for their artificial separation in the case o f the
IVF-conceived embryo, because through HET, the em bry­
onic child can be received with self-giving love and open­
ness into a community o f life and love— the family— which
it does not upset but reaffirms.
Objection 3: Prenatal < <
adoption,>or “rescue” is neither a complete
nor apractical solution to theproblem of frozen embryos. Given that
no one can oblige a woman to undergo H ET, many (perhaps most)
embryos would remainfrozen, and we would have the same problem
of not knowing what to do with them.
This objection shows the dead end to w hich the
cryopreservation o f spare embryos leads. The principal
problem lies here, and the definite solution lies in not produc­
ing embryos in vitro and cryopreserving them. Having said
283
 i
THE LICITNESS OF EMBRYO ADOPTION
this, and to answer the question, a distinction must be made
between what is practical and what is ethical. Whether a solu­
tion is practical has no bearing on whether it is licit. Obviously,
a solution must be found for all embryos. However, given that
the evil o f freezing the embryos has already been done, any
solution will entail negative risks and an awareness that one is
somehow attempting to set the evil right. It is a question of
seeing which of the possible solutions may be ethically pursued,
and o f carrying them out as soon as possible.
Moreover, to be unable to solve the problem completely
does not imply that nothing ethical can be done. We ought to
do all that we can to solve at least part o f the problem. I f our
point o f departure is the moral evil already present on account
of the prior acts, H E T will always be a limited solution, but
still acceptable.
Objection 4: Even if H E T were the only theoretical solution, it
cannot be a practical solution, since it is not regulated by a political
body as is adoption of those already born.
The fact that H E T is not regulated or, what is more, that
it clashes with existing legislation, which does not recognize
rights for the unborn, does not mean that H E T is morally illicit;
it only means that H ET should be properly regulated. And this
might well mean adapting current legislation in ways that could
not have been foreseen. In other words, H ET will have to be
translated from theory to practice, and civil law adjusted, as it
always must be, to the objective good o f the person.
Objection 5: Supposing that H E T were illicit, it would seem that the
only remaining possibility would be to let cryopreserved embryos die
by removing themfrom theirfreezers.14
14 “Decaying embryos should be removed from frozen stor­
age and allowed to die.” Edward J. Furton, in “On the Dispo si-
284
MONICA LOPEZ BARAHONA ET AL.
To allow life to follow its “normal” course and allow an
embryo to die when everything to save it has been done is
certainly a morally good and humble recognition of human
contingency. But this is not the case with cryopreserved
embryos. It is one thing to allow embryos to follow their
“normal” course and die, and a very different thing to perform
an act which is directly and immediately the efficient cause of
their deaths. An act o f thawing that is not followed by transfer
.into a womb does not /e/the embryo die, but actively causes its
death. When there is no womb for an embryo, the state o f
cryopreservation allows it at least to go on living.15 Certainly
it is in a “suspended” state o f life, which is anomalous and
objectionable, but this state is better than death by thawing.
Moreover, “to let them die” signifies here two things, which
constitute two ethically illicit acts: first, it means thawing them
(which results in their death) and second, it means doing
nothing to enable them to develop the life that they already
have. H E T, on the contrary, means giving them a real oppor­
tunity for human development. O f all the options, H E T is
the one that seeks to repair the evil already done and give the
embryos a worthy start in life, which is m ost in agreement
with an openness to love.
tion of Frozen Embryos,” Ethics & Medics 26.9 (September 2001): 1-
3. Furton proposes this as the least preferable of several options
and only for embryos that have already begun to degrade, for
whom cryopreservation provides no further benefit.
15J. Cohen et al., “Duration of Storage of Cryopreserved
Human Embryos,” Journal of Fertilisation and Embryo Transfer 5.5
(O ctober 1988): 301-303; R. G. Edwards, H. K. Beard,
“Destruction of Cryopreserved Embryos: U.K. Law Dictated
the Destruction of 3000 Preserved Human Embryos,” Human
.Reproduction 12.1 (January 1997): 3—11; and ESHRE Taskforce on
Ethics and Law, “The Cryopreservation of Human Embryos,”
Human Reproduction 16.5 (May 2001): 1049—1050.
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Objection 6: Indefinitelyprolonged cryopreservation of these embryos
would constitute recourse to extraordinary and disproportionate means
of lifepreservation, which in itself would be an affront to their dignity.
For embryos without a maternal womb, remaining in a
state o f cryopreservation is the only way to preserve the
primary good, which is the life o f the embryo. One cannot
appeal to “extraordinary and disproportionate means” or to
an offense against the dignity o f the embryo16 because, for
embryos lacking a womb, cryopreservation is the only ordi­
nary and proportionate means for securing their continued
(albeit “suspended”) existence. Cases in which extraordinary
means are used to prolong the lives o f terminally ill patients
are not comparable here. In those cases, the intent is to allow
a patient’s life to follow it normal course and avoid therapeutic
cruelty. “Therapeutic cruelty” implies the use o f dispropor­
tionate means for the good of the patient— means that are
useless and unnecessary and increase the patient’s trauma.
These characteristics do not obtain in cryopreservation.
In fact, when a maternal womb is lacking, cryopreservation
is necessary and useful for preserving the life o f the embryo,
and is not traumatic. The offense against the embryo’s dignity
and the deprivation o f maternal protection occurred when
the embryo was cryopreserved in the first place. Continuing
its cryopreservation when a maternal womb is not available
does not add to the harm. T hat harm was inflicted unfairly
and immorally in the act o f cryopreservation, which con­
tinues to be an offence, but it is a lesser harm than the death
o f the embryo through thawing. O ne applies here the moral
principle o f “limiting the damage” and reducing the negative
16N. Tonti-Filippini, “Frozen Embryo "Rescue,”’ 3-4, and “The
Embryo Rescue Debate: Impregnating Women, Ectogenesis, and
Restoration from Suspended Animation,” National Catholic Bioethics
Quarterly 3.1 (Spring 2003): 111-137 (and pp. 69-114 of this volume).
286
MONICA LOPEZ BARAHONA ET AL.
effects o f intrinsically evil acts.17 This is not to justify cryo­
preservation, but to assert—-given that it has already been
done, that it is immoral, and that no maternal wom b is
available for the cryopreserved embryos— its continuation
is the only alternative that is ethically viable.
Objection 7: Can one consider the “spare}>embryo as a “donor” of
its own cells and so engage in research with itfor the good of mankind
andprogress in medicine?
Many scientists invoke this line o f reasoning when
they seek perm ission to use frozen embryos to obtain
embryonic stem cells and engage in therapeutic research.18
The answer, however, is that the embryo, whether “spare” 19
or not, is always a human person. The moral criteron that
governs is the same as for any other person. A good end in
the intention o f the subject does not change the evil nature
o f the act o f destroying the embryo. In reality, the use of
embryos for therapeutic research is based on a lack of
recognition o f the natural humanity and personhood of
the pre-implantation embryo and on the fact that the embryo
is considered merely available biological material.20
Concerning the “donation” o f its cells, if it is truly a
human person, the moral criterion that governs the donation
17John Paul II, Evangelium vitae (March 25,1995), n. 73.
18S. A. Beyler, W R. Meyer, and M. A. Fritz, “Disposition
of Extra Embryos ” "Fertility and Sterility 74.2 (August 2000): 213—
215; and D. Hoffman et al., “Cryopreserved Embryos in the
United States and Their Availability for Research” Fertility and
Sterilityl*).5 (May2003): 1063—1069.
19Berkman affirms that the word “abandoned,” as opposed
to “spare” or “leftover,” better describes the state of these
embryos. “Gestating the Embryos of O t h e r s 311.
20Donum vitae^ I, 4.
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is the same as that for every other person. Obviously, if it is
alive, it cannot be killed to become a donor, and if it is
dead, its biological remains are to be used according to the
same criteria applied to the mortal remains o f any adult
person. These ethical criteria for donation are clear: (1) re­
spect for the life o f the donor and the recipient; (2) safe­
guarding o f the personal identity o f the recipient and his
descendents; (3) informed consent; and (4) complete gratuity,
lack o f commercialization, and just allocation.
Objection 8: H E T would bolster theposition of those who defend the
in vitro creation of embryos, for it would remove the objection that
such embryos would be destined to die. It would also open the doorfor
the donation of embryos, giving way to anotherform of heterologous
procreation.
This objection presumes a consequentialist form o f
argum entation, and confuses the acts described at the
beginning o f this paper. He who does n o t have a good
intention will always look for justifications for his unjust
acts. But the good m ust not be left undone for this reason.
One must properly distinguish the five types o f acts implied
here. The first four— IVF, refusal to transfer an embryo
into the maternal womb, cryopreservation, and abandon­
m ent o f the embryo by the natural parents— -are immoral
acts. HET, pursued by prospective parents, is an act that is
distinct from the others and is licit in itself. O ne has to
properly define the terms o f the moral licitness o f HET,
since the objective finality (finis operis), when it is proposed
as a solution, is not a justification for the evil already done,
but the opposite. Recognizing that cryopreservation is evil
closes the door to the production o f “spare” embryos, and
no posterior licit act that offers a dignified exit to those
already frozen can be “objectively” interpreted as justification
of the preceding act. Obviously, H E T would have to be
strictly regulated.
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MONICA LOPEZ BARAHONA ET AL.
Accordingly, cryopreservation finds no solid argument
here to justify itself. It is evil, n ot only because it “destines”
embryos to death but also because its illicit suspension o f
the development o f a personal life constitutes a grave and
intrinsically evil injustice to the developing hum an person.
Moreover, if the terms are well-defined, it is apparent that
H E T is in no way similar to heterologous procreation.
Rather, as the term signifies, it is analogous to adoption of
children already born, as it does n ot justify the previous evil
but tries to remedy it in some way.
Objection 9: Since H E T presupposes implantation of an embryo
into a woman who did not conceive it, the intention of the act is not
dissimilar enough from the intention of surrogate motherhood to
differentiate it objectively.
T he terms here help much to clarify things as they
indicate the specific difference between two acts which are
objectively {Jims operis) and not just subjectively (finis operan­
tis) distinct H E T is something objectively distinct from sur­
rogacy. H E T is an act o f love, generosity, and self-giving;
surrogacy is a loan or a technical service suitably remuner­
ated, utilitarian, and selfish. As G. K. C hesterton once
remarked, “Things are not what they seem, but what they
signify.” To receive the life o f a frozen embryo in love and
self-giving is not to reduce maternity to a mere physiological
function. It is, rather, entirely the opposite. H ET allows the
embryo to develop in accordance with his personhood and
humanity, thanks precisely to those biological and psycho­
logical connections that at times present themselves as the
unfounded bases for objections to HET.
The woman w ho pursues H E T is never a surrogate
m other— a madre de alquiler, or “m other for rent”— for the
simple reason that she does not “rent” her womb. The
difference between “renting” a womb and opening one’s
womb and one’s life, giving oneself generously and hero­
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ically, to receive gratis et amore a life that is frail, denigrated,
and otherwise condem ned to extermination, and to make
oneself responsible for that life from that m om ent on— the
difference between the two acts is so great that the mere
comparison is not only disproportionate, inadequate, and
false but completely superficial.
Objection 10: I f it is assumed that human life is an absolute value
and incommensurable to all other goods, then it is necessary to do
everythingpossible to save aperson’s life. Therefore, H E T seems to be
not only licit, but obligatory. However; no woman could ever be obliged
to undergo H E T. Thus, the H E T solution appears to be absurd.
O ne can begin to answer this objection by means of
analogies. One must do everything possible to save a person
who is drowning. But one who cannot swim is never obliged
to throw him self into a river to do so. Similarly, everything
possible must be done to eliminate hunger in the world, but
no one is obliged to leave his job and family to go away and
feed starving children. Responsible parenthood demands,
obviously, that no one be obliged to undergo HET. Just as
in the case o f natural generation, the choice to pursue H E T
should be the result o f the exclusive, conscientious judg­
ment o f the woman or couple in question, who ought to be
guided in their decision by the criteria o f responsibility and
generosity. But this very freedom presupposes that persons
who freely, responsibly, and generously pursue H E T should
be perm itted to do so and supported in their decision. H E T
is not obligatory for anyone for the simple reason that every­
one is called to avoid evil but no one is obliged to do all the
good that they hypothetically could do, much less w hen this
good assumes the characteristics o f heroism. B utin the same
way that one cannot make H E T an obligation, neither should
one hinder it if someone generously desires it. To impede
heroism is to impede a moral good.
290
MONICA LOPEZ BARAHONA ET AL.
W ith respect to frozen embryos, H E T presents itself—
to the degree that it is possible, which is to say, to the degree
that these embryos can be effectively implanted— as an
extreme solution to an evil already committed. With respect
to those who pursue HET, this possibility presents itself as
an extraordinary moral good, and because it is extraordinary,
it cannot be obligatory. However, because it is good, it
should not be opposed in principle; and the proposal that it
is good is not absurd, much less immoral.
Objection 11: In the same way, assuming that human life is an
absolute value, an incommensurable good, and that it is necessary to
do everythingpossible to save a person’s life, the availability of a
potential mother would constitute a sufficient condition. In the absence
of stable parents, it would be legitimate to appeal to women who are
single or have a homosexual orientation— as long as no problems in
the reproductive realmpresent themselves— since the life of the embryo
must be guaranteed.
The life o f the embryo is the primary good and the
first thing that m ust be guaranteed. But to the degree
possible, proper personal development must also be guar­
anteed. The life o f the embryo is not only a biological life
but also a personal human life. And this means that HET,
like postnatal adoption, should be regulated so that embryos
will be implanted into those women who can assure the
healthy and integral personal development o f the child.
Objection 12: Once again, assuming that human life is an absolute
value, an incommensurablegood, and that it is necessary to do everything
possible to save aperson’s life, thefollowing values, recognisedinpersonalist
anthropology, would remain subordinated: values such as the right of
the child to be gestated in his own mother’s womb; the right of the child
to be born in a context familyj that alsoguarantees the balancedgrowth
of his personality; the value of maternity as a personal event which
excludes as a matter of principle the separation of the biological,
291
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THE LICITNESS OF EMBRYO ADOPTION MONICA LOPEZ BARAHONA ET AL.

psychological, and emotionalprocesses; and the understanding ofhuman a substitution for IVF. Here, indeed, the predominant prin­
procreation as an interpersonal act that is triadic in nature, encompassing ciple is, at root, the supposed “right to a child,” and w hat
father, mother, and child. constitutes the difference between the one and the other is
simply the manner o f satisfying that right. Obviously, the
As stated earlier, one must maintain the distinction be­
act envisioned here is illicit because the transferred embryo
tween moral acts and fundamental rights. All those values
is treated as an instrum ent or thing.21
recognized by a personalist anthropology are values ordered
We would further point out that, if the logic o f the
hierarchically to serve a value that is original and prior to
objection were to hold, then postnatal adoption by sterile
them all, as it is the presupposition and necessary condition
couples would be equally illicit. And the idea of a right to a
for them to be present— that is, the value o f human life.
child would gain equal support even from fertile couples
Human life takes priority over these stated values, not in the
who conceive their children w ith that idea in mind.
sense that human life can be “produced” without them or
So the idea o f such a right is a problem distinct from
against them, but in the authentic sense that if there is no
the pursuit o f H E T as described earlier. The former per­
human life, these values will not be present either.
tains to the subjective intention o f each person (finis operan-
As the ancients said, Primum vivere et postea philosophari
tis), which may vitiate the goodness o f H E T from this point
(“First live, then philosophize”). If we philosophized first, we
o f view, but it does not change the natural goodness of
would have to conclude that the existence o f those who have
H E T in principle. Obviously, as previously said, those who
seen these rights violated has no value, dignity, or meaning—
pursue H E T should do so for the good o f the child, and
and this is absurd, for it would, among other things, exclude a
no t for their own gain. They should accept the embryo as a
good part o f humanity. O n the other hand, the objection lacks
person and not as a thing or an object that fulfills their so-
substance, for there is actually no subordination, since the
called right to a child. This criterion holds good for every
frozen embryo has, in fact, already been deprived, unjustly
moral act, for if an act could be rendered evil in itself by
and illicitly, of those rights. Its biological mother has aban­
the mere fact that someone could do it with a bad intention,
doned him; so has his family. Biological maternity has been
then even the m ost noble o f actions would be prohibited.
completely perverted and subverted; as has the act o f his hu­
man procreation. The evil has already been done. Only H ET Objection 14: Assume that maternity constitutes a unity of inseparable
can, in some way, seek to correct such injustices. biological, physiological, and affective bonds. I f one allows that in
Objection 13: H E T could not beproposed to sterile couples, because
this would support the idea of a “right to a child. ” 21 In relation to the massive destruction of cryopreserved
We have to distinguish several aspects o f this objec­ embryos there have arisen positions such as these, rooted in
personal interest, that have nothing to do with the the act of love
tion to avoid confusing a licit form o f embryo transfer from
and generosity associated with true prenatal adoption. See “Chris­
other, unsavory types o f transfer. O ne type o f transfer to tian Doctors Group Will Work to Adopt Frozen Embryos,” Pro-
be sharply distinguished from licit forms o f H E T is the Life Infonet (May 11, 2003), http://www.priestsforlife.org/news/
“bestowal” o f cryopreserved embryos to sterile couples as infonet/Infonet03-05-l 1.htm.

292 293
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exceptional cases it is licit to separate the biological bond in order to
privilege the affective, there seems to be no reason not to dispense with
the biological bond when the affective bond is lacking. This is thepro­
abortion position.
It is not a question o f subordinating or separating
affective and biological bonds, b ut o f offering the best
possible solution to an already existing separation. H um an
existence is not a mathematical equation. In H E T — as in
postnatal adoption— the affective bond is not separated,
because in fact the separation occurred before the affective
bond formed between the adoptive m other and the child.
H E T comes to make up for the loss o f the original biological
bond. It does not follow, therefore, that when the affective
bond is lacking, the biological bond can be broken.
The biological bond generates inescapable responsi­
bility. So does the affective bond. Moreover, there is little
point o f comparison between a case where the affective
bond contributes to the good o f a personal hum an life
(HET) and a case where, by the elimination o f both bonds,
personal life is also eliminated (abortion). There is no point
o f comparison because it is not the same thing to perform
a good act as to perform an evil act. The first entails an
increase in the ontological weight o f the reality at hand;
this is why the affective bond can, if present, make up for
the loss o f the biological bond. The second deprives reality
o f a due good, and therefore impoverishes i t
Objection 15: In any conceivable case of H ET, the embryos in question
would have to be transferred to a womb. But it is impossible to
accomplish this without violating the biological and anthropological
relation between mother and child. Consequently, these embryos are
in a situation analogous to that of embryos andfetuses which have
spontaneously miscarried and which consequently have missed their
opportunity to implant in the womb.
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MONICA LOPEZ BARAHONA ET AL.
The biological and anthroplogical relation between
m other and child has already been tragically broken. H E T
tries to make up for that relation, to the degree possible,
with another. The only “ordinary” means available that can
enable these embryos to attach to a womb is technical
transfer. This transfer does not generate a new life, and so
does n ot further damage a dignity already violated. It simply
limits itself to helping each embryo’s developm ent In this
case, embryo transfer is simply a therapy proportionate to
the situation at hand.
H ere we can further note a significant difference
between H E T and the generation o f human life through in
vitro fertilization techniques. In the latter, embryo transfer
is an essential part o f the process o f embryonic conception
and the beginning o f pregnancy. Both in vitro fertilization
and transfer are technical processes o f domination, power,
and selection o f the embryo. Frozen embryo transfer is very
different, because it is objectively and subjectively discon­
nected from previous fertilization-thawing procedures, and
on no account can it be objectively interpreted as a justifica­
tion o f them. Moreover, there is an essential difference
between the situation o f these embryos and o f those that
have miscarried. In the latter, there is no concurrence of
human freedom, but in the former there is. The latter have
not succeeded in implantation; the former have been impeded
from doing so. In the case o f miscarried embryos, human
freedom can do nothing to avoid their death. In the case of
frozen embryos, hum an freedom can do something— and to
refrain from coming to their aid, to the degree possible, is
negligence.
295