Disolve Agreement

							           COMMONWEALTH OF MASSACHUSETTS

               SUPREME JUDICIAL COURT

                    No. SJC-8098



                       A. Z.,

                 Plaintiff-Appellee

                         v.

                       B. Z.,

                Defendant-Appellant



    Appeal from Commonwealth of Massachusetts
             Probate and Trial Court




    AMICI CURIAE BRIEF OF THE CATHOLIC MEDICAL
        ASSOCIATION, THE AMERICAN ASSOCIATION
            OF PRO-LIFE PEDIATRICIANS, AND
       THE NATIONAL CATHOLIC BIOETHICS CENTER
      IN SUPPORT OF B.Z., Defendant-Appellant



                             Luke Stanton, Esq.
                             B.B.O. # 548619
                             24 Lexington Street
                             Waltham, MA 02452
                             (781) 736-9600
                             Counsel for Amici




Dated:   December 21, 1999
                      TABLE OF CONTENTS

TABLE OF AUTHORITIES................................ ii

STATEMENTS OF THE ISSUES, CASE & FACTS............... 1

      1.   Whether the embryos in this case are
           human beings according to the leading
           authorities in human embryology, and
           therefore are persons according to
           Massachusetts common law?.................. 1

      2.   Whether the embryos are "children" under
           Massachusetts custody law, whose
           interests in implantation, when combined
           with the interests of the mother in their
           survival, prevail over any contrary
           interests asserted by the father?.......... 1

ARGUMENT............................................. 1

I.    Introduction.................................... 1

II.   As Living Organisms Of The Human Species, The
      Embryos In This Case Are Human Beings, And Thus
      Under Massachusetts Common Law Must Be Considered
      As Persons...................................... 3

III. Davis Is Unreliable Authority Because Unlike
     Tennessee Law, Massachusetts Law Recognizes Human
     Beings Before Birth As Persons, And Embryologists
     Have Rejected Any Supposed Biological Distinction
     Between Embryos And "Preembryos"................ 6

IV.   The Embryos Are “Children” Whose Personal
      Interests In Survival Are Protected Under The
      Child Custody Laws In Massachusetts............. 8

V.    The Trial Court Failed To Consider The Embryos'
      Best Interests In Implantation And Survival.... 12

VI.   Conclusion..................................... 15




                              i
                    TABLE OF AUTHORITIES

Cases

Commonwealth v. Cass, 392 Mass. 799 (1984)..... 2, 4, 6

Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).... 6, 7, 8

Feeley v. Baer, 424 Mass. 875 (1997)................. 9

Payton v. Abbott Labs., 386 Mass. 540, 563 (1982).... 9

People v. Estergard, 457 P.2d 698 (Colo. 1969).. 10, 11

R.R. v. M.H., 426 Mass. 501 (1998)................... 9

Thibert v. Milka, 419 Mass. 693(1995)................ 9

Statutes

M.G.L. ch. 208 §§ 19, 28, 28A, 31......... 8, 9, 11, 12

Other Authorities

Erich Blechshmidt, The Beginning of Human Life (1977) 5

Keith L. Moore & T.V.N. Persaud, The Developing Human
     (1998).......................................... 5

Lee M. Silver, Remaking Eden: Cloning and Beyond in a
     Brave New World (1997).......................... 7

Merriam-Webster's Collegiate Dictionary (10th Ed.
     1993)........................................... 4

National Bioethics Advisory Commission, Cloning Human
     Beings (1997)................................... 5

Restatement (Second) of Torts § 869 (Comment d (1979) 9

Ronan O'Rahilly & Fabiola Muller, Human Embryology &
     Teratology (1996)........................... 5, 7

T.W. Sadler, Langman's Medical Embryology (1990)..... 5




                              ii
          STATEMENTS OF THE ISSUES, CASE & FACTS

     In addition to those raised by the Appellant,

your Amici urge this Court to address the following

issues:

1.   Whether the embryos in this case are human beings
     according to the leading authorities in human
     embryology, and therefore are persons according
     to Massachusetts common law?

2.   Whether the embryos are "children" under
     Massachusetts custody law, whose interests in
     implantation, when combined with the interests of
     the mother in their survival, prevail over any
     contrary interests asserted by the father?

     Your Amici adopt the Appellant's Statements of

the Case and Facts.

                         ARGUMENT


I.   Introduction.

     If this Court decides that a binding contract

between A.Z. (hereinafter the mother) and B.Z.

(hereinafter the father) did not exist or is otherwise

unenforceable, then it must determine whether equity

permits or precludes the implantation of the embryos

in this case.

     Your Amici will address two questions relevant to

the equity issue, offering information and raising

points that neither the mother nor the amicus

Massachusetts Citizens For Life has provided.



                             1
     First, are the embryos human beings?   If they

are, then under Massachusetts law they must be treated

as persons, and not as creatures having some form of

“special status” deemed inferior to personhood.      See

Commonwealth v. Cass, 392 Mass. 799, 800 (1984) (the

term “human being” is synonymous with “person”; in

addition, "offspring of human parents cannot

reasonably be considered to be other than a human

being, and therefore a person").   The trial court

refused to recognize the embryos as persons.

     Second, are the embryos included in the

references to “child” and “children” found in the

custody provisions of M.G.L. Chapter 208?   If they

are, then any custody order in this case must consider

the embryos‟ best interests above and beyond the

interests of the parents.   The trial court gave little

weight to the embryos' overriding interests as

children in their implantation and survival.

     The trial court‟s order denying custody of the

embryos to the mother for the purpose of implanting

them is erroneous.   Scientific opinion, represented by

the leading authorities in human embryology,

establishes that the human organism is formed at




                              2
conception, and thus as a biological matter, the

embryos in this case are human beings.

       In Massachusetts, at least, and notwithstanding

the jurisprudence in Tennessee or any other state,

biological existence as a human being is the only

requisite for prenatal personhood outside the abortion

context.   Therefore, as persons and as children, the

embryos in this case possess cognizable interests in

sustenance and survival under Massachusetts custody

law.   These interests, combined with the mother‟s

interests in nurturing her children, outweigh any

interest in the embryos‟ destruction or abandonment

asserted by the father.


II.    As Living Organisms Of The Human Species, The
       Embryos In This Case Are Human Beings, And Thus
       Under Massachusetts Common Law Must Be Considered
       As Persons.

       The four embryos were frozen two days after their

conception, and each entity consists of four cells in

suspended animation.   Record Appendix (hereinafter

“R.A.”) at 13, 16.   This Court has not considered the

legal status of human offspring in Massachusetts at

this stage of development.   Your Amici urge this Court

to recognize that the embryos are human beings and,




                               3
according to the reasoning in Cass, are synonymous

with persons.

     Human embryology is the scientific study of the

origin and development of the human offspring.    For

human embryologists, the concept of "organism", not

“person”, governs their inquiry and defines their

subject.   This approach is dictated by the fact that

embryology is a branch of biology, the study of

“life”.

     Thus, through the lens of an embryologist, a

“human being” is less a metaphysical construct and

more the identification of a functioning organism in

the human species.    The Merriam Webster Dictionary

defines an organism as "an individual constituted to

carry on the activities of life by means of organs

separate in function but mutually dependent: a living

being".    Merriam-Webster's Collegiate Dictionary 819

(10th Ed. 1993).

     According to the leading authorities on human

embryology and obstetrics, conception or fertilization

marks the beginning of the human organism:

          “Zygote.   This cell results from the union

           of an oocyte and a sperm.   A zygote is the

           beginning of a new human being (i.e., an


                               4
          embryo)." Keith L. Moore and T.V.N. Persaud,

          The Developing Human 2 (1998).

         "The development of a human being begins

          with fertilization."    T.W. Sadler, Langman's

          Medical Embryology 3 (1990).

         "Fertilization is an important landmark

          because, under ordinary circumstances, a new

          genetically distinct human organism is

          thereby formed."   Ronan O'Rahilly & Fabiola

          Muller, Human Embryology & Teratology 8

          (1996).

         "To be a human being is decided for an

          organism at the moment of fertilization of

          the ovum."   Erich Blechshmidt, The Beginning

          of Human Life 17 (1977).

         The “embryo” is “the developing organism

          from the time of fertilization”.    National

          Bioethics Advisory Commission, Cloning Human

          Beings, Appendix at 2 (1997).

     These authorities provide sufficient

justification for identifying the embryos in this case

as human organisms or human beings.   As such, they

deserve respect as persons under Massachusetts law.




                              5
III. Davis Is Unreliable Authority Because Unlike
     Tennessee Law, Massachusetts Law Recognizes Human
     Beings Before Birth As Persons, And Embryologists
     Have Rejected Any Supposed Biological Distinction
     Between Embryos And "Preembryos".

        The trial court heard no evidence to dispute the

scientific observation that conception, rather than

some later event, marks the beginning of human beings.

Instead, the trial court referred largely to Davis v.

Davis, 842 S.W.2d 588 (Tenn. 1992), and adopted the

arguments found therein as bases for characterizing

the embryos in this case as non-persons.      For the

following reasons, your Amici believe that any

reliance on Davis is erroneous.

        In Davis, the Tennessee Supreme Court concluded

that as a matter of Tennessee law the status of

personhood applied only to human beings after live

birth.     Id. at 594-95.   As construed in Davis

therefore, Tennessee law differs from Massachusetts

law, which recognizes that outside the abortion

context legal personhood inheres to human beings

before birth.    See Cass.   Thus, the central holding in

Davis denying legal personhood to embryos in Tennessee

because of their gestational age does not control this

case.    The issue in Massachusetts is not whether the




                                 6
embryos are born (or otherwise are of sufficient

gestational age) but whether they are human beings.

     In addition, the Davis opinion relied almost

exclusively on a now discredited distinction between

"preembryos" and embryos.   Id. at 593-97.    The

distinction has no scientific meaning, especially when

applied to human embryos, and lacks any credible

support among human embryologists and other scientific

authorities.

     The leading treatise on human embryology refuses

to use the term preembryo because it is "ill-defined

and inaccurate".   Ronan O‟Rahilly & Fabiola Muller,

Human Embryology & Teratology 55 (1996).     None of the

other major treatises uses the term.    In addition,

Professor Lee Silver of Princeton University, an

advocate for cloning and embryo research, has reported

that IVF researchers embraced the term preembryo “for

reasons that are political, not scientific”.     Lee M.

Silver, Remaking Eden:   Cloning and Beyond in a Brave

New World 39 (1997).

     From its conception, the human offspring starts

an uninterrupted course of development consistent with

its biological status as an organism.    This scientific

reality has lead embryologists to reject the


                              7
metaphysical theories of delayed development espoused

in Davis, and speaks against the creation of any

arbitrary dividing line between "preembryos" and

embryos for the purposes of this case.

      Massachusetts jurisprudence, which equates the

human person with the human being, should take into

account the scientific findings of embryologists

unconcerned with political agendas.      Because the

embryos in this case are human beings, they should be

treated as legal persons.


IV.   The Embryos Are “Children” Whose Personal
      Interests In Survival Are Protected Under The
      Child Custody Laws In Massachusetts.

      The law governing custody disputes in

Massachusetts divorce proceedings refers repeatedly to

a "child" and the "children".       The relevant provisions

of Chapter 208 guarantee that a child‟s best interests

will determine custody disputes.       See M.G.L. ch. 208

§§ 19, 28, 28A, 31.   The Chapter nowhere mentions

creatures of a non-personal nature with an ephemeral

"special status".

      Either the embryos in this case are children or

they are not.   If they are children, then any private

agreement between the parents touching upon the




                                8
embryos' welfare or any balancing of parental equities

by the judiciary must comport with the embryos' best

interests in remaining in the custody of the mother

who cares for them.

     The question of whether embryos are “children”

under Chapter 208 is an issue of first impression in

Massachusetts.    The developmental prematurity of the

embryos should not exclude them from consideration as

"children".    In numerous cases, this Court has

referred to "unborn children" as a matter of course

(in at least 22 cases), indicating that prematurity

and the status of childhood are not mutually exclusive

categories.    See, e.g., R.R. v. M.H., 426 Mass. 501,

505 (1998); Feeley v. Baer, 424 Mass. 875, 877 n.3

(1997); Thibert v. Milka, 419 Mass. 693, 694 (1995).

     Moreover, this Court has recognized that

individuals in Massachusetts may recover damages for

“any [prenatal] injury occurring at any time after

conception”.     Payton v. Abbott Labs., 386 Mass. 540,

563 (1982)     (quoting Restatement (Second) of Torts §

869 (Comment d (1979))(emphasis added). Thus,

conception, and not some later stage in prenatal

development, marks the time when legally cognizable




                                9
interests of a personal nature arise in the

Commonwealth.

       While no other Massachusetts case has addressed

the meaning of "child" in the context of a custody

dispute, your Amici calls this Court's attention to

People v. Estergard, 457 P.2d 698 (Colo. 1969).

There, the Colorado Supreme Court held that a

provision of the state paternity and support law

included human offspring “upon conception and during

pregnancy” when it referred to the “child”.     Id. at

699.

       According to the court in Estergard, such a

construction of "child" served the law‟s overall

purpose.   The court recognized that “the months of

prenatal existence are tremendously important ones

from the standpoint of human welfare.   The physical

and mental conditions of the expectant mother are

vital factors in the unfolding life of the child

itself.” Id.

       The Colorado law authorized the courts to issue

orders providing for the protection, support, and

prenatal care of children.   Because the Colorado

courts had no jurisdiction over putative fathers who

left the state, “[t]o construe „child‟ so as to


                               10
exclude an unborn child would permit the father of an

unborn child to evade his responsibility of support by

leaving the state at any time prior to the birth of

the child.”   Id.

      Chapter 208 promotes similar purposes by

authorizing a court in a divorce proceeding to issue

orders concerning a child's care.   M.G.L. ch. 208 §

19.   Upon a determination for divorce, the court may

continue to issue such orders, and even award sole

legal custody to one parent “to make major decisions

regarding the child's welfare including matters of

education, medical care and emotional, moral and

religious development.”   M.G.L. ch. 208 §§ 28, 28A,

31.

      From conception onward, developing human

offspring exhibit fundamental biological needs, and in

the case of frozen embryos, the need to implant in the

mother's womb is of paramount importance.   This Court

should not allow fathers to evade their

responsibilities towards their offspring by taking

advantage of an excessively narrow interpretation of

the term "child".   For the same reasons that the

Colorado court rejected the employment of a narrow

definition of "child" in that state's custody law,


                              11
this Court should reject a restrictive definition of

"child" that excludes frozen embryos from the

protections of Chapter 208.


V.   The Trial Court Failed To Consider The Embryos'
     Best Interests In Implantation And Survival.

     Chapter 208 requires any judicial orders

concerning the custody and welfare of minor children

to be based on the children's best interests.     Nowhere

in the trial court's discussion of contract principles

and common law equities were the exact interests of

the embryos fully described or exhaustively

considered.   The only claim assigned to the embryos by

the trial court was the purported interest in avoiding

the supposedly "unfair" circumstance of "enter[ing]

the world unwanted by one of [their] parents."       R.A.

at 344.

     Should continued life for the embryos be judged

as too burdensome to be worth living only because the

father does not want them and regardless of the

mother's desire to nurture them?     Such a view fails to

take into account the weight of the mother's

commitment to the embryos' well-being, and the

embryos' interest in survival.     Any theoretical

burdens on the embryos arising from the father‟s



                              12
disinterest do not justify denying the embryos every

chance to survive and ultimately to experience the

mother‟s love.   Thus, full consideration of all the

equities leads to the conclusion that awarding sole

legal custody to the mother furthers the embryos‟ best

interests in implantation and nurture.

     The respective interests of the father and

mother, independent from those of the embryos, do not

change this conclusion.   The biological parent who

wants the children should possess a stronger claim to

becoming the physical or legal custodian than the

parent who does not want the children.

     The trial court reversed this common sense

presumption by holding that the parent who does not

want the embryos, and thus who directly interferes

with their supposed interest in being wanted by both

parents, should prevail by having the embryos

destroyed or abandoned.   For the following reasons,

this result appears neither right nor fair.

     This is not an abortion case, involving a mother

unwilling or unable to bear any longer the unique

burdens of pregnancy.   The mother here wants very much

to nurture the embryos by accepting the burdens of

pregnancy.   Instead, this case is one of paternal


                              13
abandonment, involving a father who wants to avoid the

responsibilities of parenthood by preventing the

embryos from developing further.

     Nor would the mother's decision to carry the

embryos to term violate the father's bodily integrity

or procreative freedom.   The "pro-creation" involving

the father's bodily donation of sperm has already

occurred with the father's consent, resulting in the

conception of embryos.    Preventing implantation in the

mother will not change the reality of the embryos'

creation and existence.   They rest in frozen storage,

real, not imaginary products of the father's

consensual participation in their beginning.   Any

paternal interest in "avoiding" procreation loses its

force when the interest in procreative choice has

already been exercised.

     The only remaining interests at stake for the

father are the same emotional and financial concerns

any father brings to a custody determination

proceeding.   Such interests fail to override the

mother's concern for the very survival of her children

and the children's interest in receiving the mother's

love, care and support.




                               14
      In sum, the strength of either parent‟s claim to

effectuate a desired outcome regarding the embryos‟

disposition is measured not only by each parent's role

as “gamete provider” but also by each parent's

responsibility to act in his and her children‟s best

interest.   Should one parent, as is the case here,

desire an outcome contrary to the children‟s best

interest, then that parent‟s equal stake is

compromised, and reasonably so.

      Thus, the embryos' claim to the custody of a

mother who wants them and who will optimize their

chance of survival by implanting them represents their

best interest, even and especially in the face of the

father's disinterest.   Otherwise, any child involved

in a custody dispute could and must be denied

nurturing maternal custody, and illogically so, by the

mere fact that the child is unwanted by the father.


VI.   Conclusion

      Based on the foregoing, this Court should reverse

the trial court, dissolve the injunction, and permit

the mother to implant the embryos.




                              15
RESPECTFULLY SUBMITTED:




_____________________
Luke Stanton, Esq.
B.B.O. # 548619
24 Lexington Street
Waltham, MA 02452
(781) 736-9600
Counsel for Amici




    16