An Oregon divorce case confirms that courts consider frozen embryos like property, an outcome predicted and feared by Catholic leaders decades ago.

In the wake of the Oct. 8 decision by the Oregon Court of Appeals, Catholic ethicists say other technologies, like genetic selection of infants, will pose more problems soon.

The court unanimously upheld a woman’s decision to kill six frozen embryos by thawing, despite an appeal by the husband to keep them alive. Though the court stopped just short of actually calling embryos property, the key to the decision was a determination that embryos are to be considered under property laws.

The mother, Dr. Laura Dahl, said she wanted the embryos killed because she did not want someone else raising the children if they were ever carried to term. She is a pediatrician in Lake Oswego, a Portland suburb.

The father, Dr. Darrell Angle, argued that the embryos are alive and so their protection should override a pre-treatment agreement saying that the mother could decide on their fate. Angle’s lawyers also contended that the destruction amounted to an unfair distribution of property.
Dahl and Angle wed in 2000 and had a son. In 2004, they decided to conceive again through in-vitro fertilization at Oregon Health and Science University. The treatment foundered, leaving the six embryos frozen for preservation. The couple had signed an agreement that left Dahl to decide on the embryos in case of a divorce.

The decision has nationwide importance, because tens of thousands of couples have frozen embryos in storage left over from in-vitro fertilization. The number is estimated at more than 100,000.

“Generally when parents are permitted to be decision makers for their offspring, the courts assume that the parents have the best interest of their offspring in mind when the decision is being made,” says Margaret Hogan, executive director of the Garaventa Center for Catholic Intellectual Life and American Culture at the University of Portland. “Dr. Dahl maintains that she would not want someone else to raise her child – so she chooses to have them killed. This is hardly in the best interest of her offspring.”

When in-vitro fertilization was new, rules required that for any couple, only four embryos be created and all four would be implanted in the woman. That rule was rooted in the generally-accepted scientific recognition that the life of a new human individual begins when the gametes of the parents unite.

Things became muddled with Roe v. Wade and Doe v. Bolton. In those rulings, the majority of U.S. Supreme Court justices said they did not know when human life begins. “On the foundation of this learned ignorance, they declared that the early developing human being is not a person,” says Hogan.

That meant that as in-vitro fertilization became a successful industry, guidelines disappeared and tens of thousands of frozen embryos are the result. It also meant that cases over embryos are handled not in family court, but in courts that work out property settlements.

“It is emblematic of the problems associated with artificial reproductive technology,” says Dr. William Toffler, a professor at Oregon Health and Science University and a member of Holy Rosary Parish in Portland. “This was predictable.”

The most frightening development, says Dr. Toffler, is the implication that embryos are “property,” with not a hint of deference to them as young living humans. “That is chilling when you think of the 19th-century, when African Amercians were thought of as property,” he says.

The notion that unborn humans have fewer rights “flies in the face of science,” Dr. Toffler adds, explaining that current technology and recent discoveries make it clear that human development is stunningly advanced at an early age.

Artificial reproductive technology simply leads into “an ethical mine field,” Dr. Toffler says. It requires multiple implantations, followed by a “search and destroy operation.”

“It’s where the culture of death has led our society — through the courts — to truly devalue human life,” says Dr. Tom Pitre, former president of the Catholic Medical Association and a Portland urologist. “The courts have failed to regard the science that life begins at conception. This should be a wakeup call to society that life is being treated as property.”

Many firms are now offering genetic analysis of embryos before implantation so that parents can choose what they want and destroy what they don’t want.

There are other, natural options to enhancing fertility. Dr. Thomas Hilgers, of the Pope Paul VI Institute for the Study of Human Reproduction in Omaha, has developed Natural Procreative Technology, or NaPro, in 30 years of work. It involves monitoring women’s cycles. The methods are in keeping with Catholic teaching and appear to be at least as effective as other technologies.

Catholics may not be aware the church teaches that it is morally unacceptable to make babies outside of marital intercourse, says Patty Marx, head of the pro-life office at the Diocese of Baker. The Catechism of the Catholic Church says that a child is a gift, not something owed to anyone. Marx adds that after Roe v. Wade, Americans went on another path and became “enslaved to our disordered pursuit of happiness.”

On the status of embryos who are already frozen, the issue is complex and the church has not yet definitively ruled. Baker Bishop Robert Vasa, who advises the Catholic Medical Association, says it is possible that the embryos are being kept alive by extraordinary means, and so thawing them may be a way of “allowing them to die.”