It seems to us that a married couple who steps forth,
willing to adopt a frozen embryo,
is acting in and with the mind of the Church.

Adoption of a frozen embryo

By Geoffrey Surtees

n In his encyclical letter, Evangelium vitae, John Paul II describes how "a veritable structure of sin . . . takes the form of a veritable 'culture of death'" ; it is "a war of the powerful against the weak: a life which would require greater acceptance, love and care is considered useless, or held to be an intolerable burden, and is therefore rejected in one way or another" (n. 12, emphasis in original). One horrific and concrete example of this structure of sin, sadly so seldom called to attention, is the plight of thousands of frozen embryos currently held captive in what the late Jerome Lejeune appropriately called "concentration cans."1 Owing to the philosophical, scientific truth that the human person is brought into being at the moment of conception, we must acknowledge these frozen embryos as our brothers and sisters in mankind; indeed, theologically speaking, as our brothers and sisters in Jesus Christ, who "by his incarnation . . . has united himself in some fashion with every human being" (Gaudium et spes, n. 22). The captivity, then, of frozen embryos in "scientific" institutes across our nation should instill great horror in anyone who recognizes that these embryos are as much human persons as we ourselves are: with an incomparable dignity, with an incommunicable identity. However, as with all areas of human concern and involvement, this particular manifestation of our culture of death, this war against the weak, is not without questions of a moral nature, the most obvious of which is, "what can be done?"

The question

In the October 1995 issue of Homiletic and Pastoral Review ("Questions Answered," pp. 72-73), Msgr. William Smith proposes an answer to the following moral query, one directly related to our question above:

A couple volunteers to "rescue" a frozen embryo not of their own making. They do not approve of in vitro fertilization but they want only to rescue and adopt this unborn and raise the child. Is this a licit option?

Relying on his understanding of the Congregation for the Doctrine of the Faith's instruction, Donum vitae (February 22, 1987), Msgr. Smith responds in the negative. Claiming that such an action would violate the moral norms proposed by the CDF, he concludes that "this cannot be ethically obligatory, nor do I consider it an ethical option." While I do not contest Msgr. Smith's first conclusion, "this cannot be ethically obligatory," I do respectfully disagree with his conclusion that such an act is, in fact, "illicit."

The following response to Msgr. Smith's article is divided into three parts: part one will respond to Msgr. Smith's understanding of a key statement from Donum vitae (". . .with no possibility. . . which can licitly be pursued"); part two will (a) discuss Msgr. Smith's contention that the adoption of a frozen embryo is akin to the condemnable practices of in vitro fertilization and surrogate motherhood and (b) explain how the object freely chosen by the adopting couple is entirely different from the object of couples choosing methods of artificial reproduction; part three will engage the question of prudence as it relates to the adoption of frozen embryos.

With no possibility . . .

Let us begin with the question and response offered at the introduction to the crux of Msgr. Smith's argument. Msgr. Smith asks, "given the fact that the frozen embryo came to be in an illicit fashion, what of the possibility of trying to help or 'rescue' this frozen embryo from no man's land?" Msgr. Smith first cites Donum vitae, I, 5: "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 (sorti absurdae obnoxii permanent), with no possibility of their being offered safe means of survival which can be licitly pursued" (Smith's emphasis). He then concludes: "No safe means that can be licitly pursued! Perhaps, the CDF did not intend to address this precise case, but I read here a first principled insight indicating that this volunteer 'rescue' is not a licit option" (Smith's emphasis).

Three problems present themselves with respect to Msgr. Smith's understanding of this statement from Donum vitae. First, he assumes that when Donum vitae states "with no possibility . . ." it somehow is proposing, on the face of the language itself, a negative moral precept universally applicable to all people and in all circumstances. Contrary to Msgr. Smith's interpretation of this passage, I submit that the CDF is speaking here from the perspective of the acting persons who have freely adopted by choice the intelligible, though illicit, proposal of artificial reproduction; and, hence, not those who would wish to "rescue" these embryos through adoption.2 In other words, for those who choose the methods of in vitro fertilization, it is in fact true that there are no licit means of handling the "spares" begotten from the IVF procedure; this is because any action the parties choose to adopt with respect to the "spares" would be to deny the fundamental rights of the embryo(s) to enjoy gestation and birth in his natural mother; and, after birth, to be raised and educated by the same.3 Even if the couple were to envision giving up their "spares" for adoption, this too would be wrong, and for the same reason: it would deny the children the parental love they are by natural justice entitled to from their original parents. It is never licit to reject one's own child; and it is a further injustice to give him over to the "absurd fate" of spending the rest of his existence confined in deep freeze, all the while susceptible to experimentations and further inhumane treatment. Does this then mean that such children ("spares") so rejected cannot be adopted by another couple? I should think not. Many couples-married, adulterous, and fornicating couples-conceive children they do not intend or desire, and subsequently reject them (and this, of course, is never licit4); but this does not perforce preclude the licit and generous option of adoption. A crucial distinction, that Msgr. Smith's argument lacks, needs to be made: a distinction between what the acting subjects who participate in artificial reproduction are choosing to do and what the adopting couple is choosing to do. As we hope to explain later, the two actions constitute two radically different moral species.

Second, Msgr. Smith's interpretation of "with no possibility . . . which can licitly be pursued" presents another difficulty; namely, that this would create a confusing, perhaps contradictory, problematic within the instruction itself. Amidst the extensive quotes from Donum vitae in his article, Msgr. Smith curiously leaves out the following: "Although the manner in which human conception is achieved with IVF and ET cannot be approved, every child which comes into the world must in any case be accepted as a living gift of the divine Goodness and must be brought up with love" (II, B, 4, b). If every child is a gift from God himself, no matter "the fact that the frozen embryo came to be in an illicit fashion" to quote Msgr. Smith, then how could we interpret the CDF to mean that these rejected "spares" must forever remain in their "absurd fate . . . with no possibility of their being offered safe means of survival which can be licitly pursued"?5 We should therefore hesitate before accepting Msgr. Smith's reading of these words. For, if Msgr. Smith were in fact correct, then the CDF would be claiming through its magisterial authority that though every child-no matter the circumstances of his conception-is a gift from God, some children are destined to spend the duration of their lives in oblivion, i.e., with no adopting couple "licitly" permitted to enter this "no man's land" and save the child from his "absurd fate."6 It would seem that the illicit fashion in which a child came to be does not, ipso facto, preclude him from being adopted, even if this adoption entails that the child be placed in the nourishing womb of his adoptive mother for gestation and birth.7

Yet a third problem with Msgr. Smith's use of this sentence from Donum vitae is the question of translation. Msgr. Smith's article contains the translation, ". . . with no possibility of their being offered safe means of survival which can be licitly pursued."8 The key words in this phrase are "no possibility" (non pateant), for it is upon these two words that Msgr. Smith arrives at his "first principled insight indicating that this volunteer 'rescue' is not a licit option." However, in the authoritative Latin Lexicon of Lewis and Short,9 we find another definition for the verb patere that would appear to provide a more appropriate translation. Not only does patere mean "to be allowed," the sense of which is used in the English translation Msgr. Smith uses, but it also means "to be clear or manifest; to be well known."10 Hence, another translation can be proposed: ". . . with no well known [or clear or manifest] safe means of survival which can licitly be pursued." Not only would this rendering of the Latin help prevent any interpretations which might give rise to contradictions within the instruction itself, it would clarify, as well, the fact that the CDF is not proclaiming "illicit" an option they have not even considered: either in Donum vitae or in any other magisterial document. Indeed, the option we are discussing is not a well known or clearly manifest proposal of action.11 One obvious reason it is not a well-known option is simply that the plight of frozen embryos has only recently been called into the public's attention, let alone the question of their being "rescued" through adoption.

Reproduction, adoption and the object of choice

Before we delve further into Msgr. Smith's article and his use of Donum vitae, we should first recall the CDF instruction's stated purpose: it is an "Instruction on Respect for Human Life in its Origin and Procreation: Replies to Certain Questions of the Day." The instruction is divided accordingly into three parts: part one is entitled "Respect for Human Embryos"; part two, "Interventions Upon Human Procreation"; and part three, "Moral and Civil Law." Part two, whence Msgr. Smith derives the remainder of his arguments, engages moral issues related to the "origin" and "procreation" of children. In the matter before us, however, we are not considering procreation per se (nor any of its abuses), but a moral response to an embryo-a human person-who is already in existence.12 The couple wishing "to rescue and adopt this unborn and raise the child" is not seeking an artificial substitute for the conjugal act and its fruitfulness for the simple reason that the child is already alive within the human community. We are, therefore, dealing with a question of adoption, not of procreation or artificial reproduction. Herein lies a significant fact Msgr. Smith overlooks in his article: he does not take into consideration the fundamental distinction between procreation (the act) and the person who comes into being as a consequence of procreation (the natural result of the act): both distinctions logically involve two different modes of moral consideration. Though Msgr. Smith correctly notes that "DV does state principles relevant to this question," he appears to misapply these principles insofar as he does not distinguish between how a person comes to be-in artificial reproduction-and that a person has come to be-so that he might be adopted. One cannot adopt what does not exist.

The lack of this distinction in Msgr. Smith's article, between the act of procreation (and any of its abuses) and the result of procreation, is manifest when we consider another problem in his article (and upon which hinges the core of his argument); namely, the establishment of an integral connection between the sins of surrogate motherhood, in vitro fertilization, artificial insemination, "other means of artificial reproduction," etc. and the adoption of a frozen embryo. Msgr. Smith believes that the same moral principles which constitute the illiceity of artificial reproduction are the same which make the adoption of a frozen embryo likewise illicit. Citing Donum vitae, II, 3, Msgr. Smith writes that "the foundational reasons for rejecting 'surrogacy' as licit also apply to this project-a failure to meet the obligations of maternal love, conjugal fidelity and responsible motherhood; and the facts offend the dignity and right of the child to be conceived, carried in the womb, brought into the world and brought up by his own parents, setting up to the detriment of families, a division between the physical, psychological, and moral elements which constitute families." How these principles of parenthood and responsibilities to the child can be employed to describe the adoption of a frozen embryo as "illicit" seems questionable. It is the original parents of the child, and any third or fourth parties who had illicit recourse to artificial reproductive techniques, that have failed to meet these moral principles articulated in Donum vitae, not the rescuing, adopting couple. The latter have had no say, no knowledge of, were not party to, and are morally repulsed by, the manner and circumstances by which the child came to be.13 They recognize the moral failure on the part of the embryo's original parents to live up to "the obligations of maternal love, conjugal fidelity, and responsible motherhood" that Donum vitae so eloquently speaks of, and therefore only wish to provide the love that these children have been neglected by their original parents. This is, after all, the meaning of adoption, and why adoption is an entirely licit option. It would be wrong to conclude that any child not "brought up by his own parents" is to be rejected. If a child's natural parents refuse to meet the obligations peculiar to their identity as parents, then it would appear to be perfectly licit for another couple to adopt this child and give him the love, nourishment, and education he deserves as a creation of God. In my view, this is a noble, loving deed-not to mention "licit".14

Immediately following his appropriation of Donum vitae's discussion regarding surrogacy, Msgr. Smith proceeds to quote "a principled conclusion that pertains, I think, to this question: 'the moral relevance of the link between the meanings of the conjugal act and between the goods of marriage, as well as the unity of the human being and the dignity of his origin, demand that the procreation of a human person be brought about as a fruit of the conjugal act specific to the love between the spouses' which this project is not" (quote from Donum vitae, II, 3). This project of rescuing frozen embryos through adoption is not about a perversion or abuse of the conjugal act because this project has nothing to do with the conjugal act. The conjugal act, or rather the perversion thereof, has already taken place. Therefore, the child is already in existence; as much as any child to be adopted is in existence, as much as we are in existence. Of course, in this case adoption entails having the child placed in the adoptive mother's womb for full gestation, but neither faith nor reason informs us that a child must be viable in order to be adopted. If we believe that the person comes into existence at the very moment of conception, then it would logically follow that the child, whose natural parents have rejected him, is entitled to adoption as much as any rejected child. And, if the child to be adopted requires the nourishment of his adopted mother's womb for his well-being, then so be it; it is only one extended moment of the lifetime of love that must be afforded to this child by his newly adoptive parents.

That the adoption of a frozen embryo cannot be compared with surrogate motherhood, in vitro fertilization, and "other means of artificial reproduction" repudiated by the Church, is made most manifest when we consider what constitutes the object of choice for the adopting couple and the object of choice for the couple using methods of artificial reproduction.15 The object of choice, I submit, is located in the very names used to identify these two couples; for what one chooses is that which determines his or her identity.16 The intelligible proposal of action being freely adopted by choice by the rescuing, adopting couple is, simply enough, adoption-an action not ethically obligatory, but one which is entirely licit and moral; an action which involves a child already conceived but rejected; an action never condemned by the magisterium of the Church. Though the embryo's first adoptive "home," as it were, would be the womb of his new mother, I can see no reason why such a "home" should not be made available.

On the other hand, the intelligible proposal being freely adopted by choice by the artificial reproduction couple is artificial reproduction; an action which divorces the unitive meaning of the conjugal act from the procreative one by conceiving a child outside or beyond the marital embrace; an action which sees the begetting of a child as the end product of a series of technological operations; an action rightly condemned by the magisterium of the Church. In every one of these actions condemned by the CDF in Donum vitae-surrogate motherhood, heterologous/ homologous in vitro fertilization, et. al.-they have been deemed illicit precisely because they seek to bring a child into existence not in accordance with the designs of nature and true conjugal love.

The perspectives of the acting persons in these two cases are, therefore, radically different: the IVF couple17 believe they have a "right" to a child, while the adopting couple are seeking to love and help a child already in existence; the IVF couple are seeking to produce a child through the means of technology, while the adopting couple is rescuing and adopting one through the means of technology; the IVF couple see their "spares" as material objects to be dispensed with, while the adopting couple see them as children of God deserving of a loving family; the IVF couple reduces the child to a "product," while the adopting couple sees him as co-equal in dignity to them; finally, the IVF couple, after a series of scientific interventions, give a child to themselves, while the adopting couple wish to give themselves to the child. Indeed, when one understands the distinction between what is being chosen by the adopting couple and what is being chosen by the couple using artificial means of reproduction, one would have to conclude that there is nothing in common between the action of artificial reproduction and the action of rescuing a frozen embryo through adoption.

A question of prudence

The couple who illicitly employed methods of artificial reproduction obviously had problems with infertility; this is precisely the reason why they had illicit recourse to substitute for the conjugal act in the first place. On the other hand, a couple wishing to adopt a frozen embryo may or may not have a problem with infertility; in fact, it does not matter.18 Many married Catholics who are unable to have their own children have chosen the loving option of adoption. The Church herself recognizes the generosity of this action.19 Also, couples who are able to have their own children sometimes choose to adopt because they see a need for it and feel called and capacitated to do so. This is precisely why the option we are discussing cannot be "ethically obligatory"; it is no more ethically obligatory than adopting a child from an orphanage or a rejected child living on the streets of New York City or Calcutta. Indeed, any couple wishing to adopt a frozen embryo must therefore make a prayerful and prudential judgment of conscience: are they spiritually and materially capacitated to care for the child? Are they willing to accept any physical or mental disabilities this embryo might eventually suffer from as a result of his illicit beginnings? Do they understand that they are adopting a child whose very origin is shrouded in the unknown, not knowing the original parents or the exact circumstances by which the child came to be? Like natural parenthood itself, adoptive parenthood must be entered into with prayer, conscientious consideration, and sacrificial love.

Let us now consider the following question posed by Msgr. Smith: "Is it relevant to ask whether the woman who volunteers her womb and herself for this project is married or single?" Let us make the question even more extreme: is it relevant to ask, for instance, whether the woman is a nun? I would answer both questions in the affirmative: it is most relevant.20 Any child who is to be adopted should be adopted into a state of life becoming of the spiritual, mental, and physical well-being of the child; the only state of life intrinsically ordered to do this is that of marriage and family. Hence, a single woman and a nun, by reason of their not being married spouses, are not fully capacitated to undertake the full-time care any child needs and deserves.21 The day-to-day obligations of both the single woman and the nun lie beyond the scope of adopting and raising a child; they have other duties and obligations within their personal vocations to which they must attend. Marriage, on the other hand, exists for the very purposes of educating and raising children in love and is, therefore, the best state of life capacitated to care for a child. There is thus no difference between adopting a child prior to birth and one after birth; children at both stages of natural development deserve to be adopted into permanent, subsistent families.

What, then, of a woman who only wishes to "rescue" the child by bringing it to birth and, subsequently, give it up for adoption? Though the "rescuer" obviously means well, to a certain degree such an action would further perpetuate the "absurd fate" of the child. A child is not an object or item to be transferred about as a mere temporary possession; this is what defines the existential condition of the frozen embryo now. Rather, he is entitled to be adopted once into a family which vows to meet the obligations, responsibilities, and duties any family must live up to.22 The life of this much-abused child must not continuously be "started over." Hence, not single women, but loving, stable, married women should be the ones to offer their lives for such a project.23 This is what the child needs, this is what he deserves.

Respectfully disagreeing with Msgr. Smith's opinion on this matter, it appears evident, upon consideration of the many details, that a married couple who steps forth to rescue a frozen embryo through adoption is acting in and with the mind of the Church; indeed, as far as reason and faith are concerned, there seems nothing illicit about such an action. On the contrary: "To rescue and adopt this unborn and raise the child," as the original question stated, is nothing less than an extraordinary work of mercy. It reveals both a profound respect for the sanctity of human life and the powerful witness of love; a witness our culture of death so desperately needs to behold. n

Mr. Geoffrey Surtees is a candidate for his M.T.S. at the John Paul II Institute for Studies on Marriage and the Family. This article was prepared with the help of Dr. William E. May, Michael J. McGiveny Professor of Moral Theology at the Institute. This is his first article for HPR.

1 See Lejeune's book, The Concentration Can (San Francisco: Ignatius Press, 1992). This book provides a text of Lejeune's testimony given in Davis v. Davis wherein Lejeune argues, among other things, that if the disputed frozen embryos could not be returned and implanted in their original mother, then they ought to be adopted and implanted in the womb of another-this to save the life of the embryo. The following is an excerpt from the testimony (Mr.Taylor represents Dr. Ray King, designated "guardian" of the embryos by the court):

TAYLOR: . . . . If his Honor should decide for some reason that it is not appropriate that Mrs. Davis, the mother, should have these embryo [sic], would you then agree that the second preference, the second best solution would be to donate them to some other couple, some other mother who would bring them into being, or attempt to bring them into being?

LEJEUNE: I would agree with that because that would preserve the life of the embryos, but then if you agree with that, you are coming back to the Solomon decision. The mother is the one who prefers the baby given to another rather than the baby being killed. Then I would suppose that the justice would be on the side of Solomon (pp. 99-100).

Jerome Lejeune and Dr. Charles Rice of Notre Dame (who wrote an afterword for Lejeune's book) are powerful voices in the debate which the present essay engages. Both men conclude, contrary to Msgr. Smith, that the adoption of a frozen embryo, under the circumstances laid out here, is in fact a licit action.

2 "The morality of the human act depends primarily and fundamentally on the 'object' rationally chosen by the deliberate will, as is borne out by the insightful analysis, still valid today, made by Saint Thomas. In order to be able to grasp the object of an act which specifies that act morally, it is therefore necessary to place oneself in the perspective of the acting person" (Veritatis splendor, n. 78, emphasis in original). From the perspective of the acting persons cooperating in artificial reproduction there are, then, no licit means to offer safe survival for the embryo(s). It would be wrong to conclude, however, that the embryo must, per-logical-force, waste away in deep freeze because of the sins of his parents. The couple who would rescue this embryo through adoption are choosing another moral object entirely different and distinct from what the couple using artificial reproduction has chosen.

3 A principle set forth by Donum vitae itself (quoted later in the present article).

4 Sadly enough, in our current culture of death, greatly fueled by a contraceptive mentality, abortion has become the preferred method of choice in rejecting children; giving them up for adoption is seldom anymore even a consideration.

We should also be more specific as to what we mean by it never being licit to reject one's child. We are speaking here from the moral perspective of those who engage in sexual activity knowing that should a conception take place, then the child will certainly be rejected. To give a child away (not reject) with sadness and pain for the benefit of the child (Moses, for instance, or an unmarried teenage girl) is another case entirely. Here, the parents would wish to keep the child if overbearing circumstances did not force them to give the child up. The difference here is the difference between self-centeredness and other-centeredness (very much the same difference between "artificially reproducing" a child and adopting one).

5 One might object by attempting the following clarification: "only the original mother, after some form of repentance for having conceived her child in so illicit a fashion, can have the embryos implanted into her own womb." But what if, for example, the mother should die prior to implantation; or what if she simply refuses to acknowledge their existence and her responsibility? Is there really no hope, then, for the child? Though, of course, it would be best for the original mother of the child to be the one to carry him to term, give him birth, and raise him lovingly, we see no reason for thinking that she alone can provide such a loving service, especially if she refuses this service herself.

6 Interestingly enough, Msgr. Smith himself suggests no other remedial and licit action in his article.

7 Furthermore, how could we agree with Msgr. Smith's interpretation of Donum vitae's statement regarding "no possibility," if the instruction likewise informs us that "One must hold as licit procedures carried out on the human embryo which respect the life and integrity of the embryo and do not involve disproportionate risks to it, but are directed toward its healing, the improvement of its condition of health, or its individual survival" (I, 3)?

8 The Latin text reads as follows: "Eo quod in vitro producti sunt, hi embryones, qui in matris corpus non translati 'supernumerarii' vocantur, sorti absurdae obnoxii permanent, quippe quibus securae viae non pateant ad superstitem vitam, quas ingredi liceat" (emphasis added, indicating the specific phrase of the sentence we are discussing).

It should be noted that the English translation Msgr. Smith is using coincides with the "Authorized Vatican Translation" of the instruction (cf. the 1987 edition of Donum vitae from Ignatius Press).

9 Oxford University Press, 1879 ed., reprinted 1975.

10 Ibid., p. 1313.

11 It should be remembered that the adoption of frozen embryos is but a moral response to a situation steeped in sin. If there were no captive frozen embryos in the first place-and this is something to be prayed for fervently-then the question of their being adopted would be a moot point.

12 One would think that if the CDF had stated moral principles related, directly or indirectly, to this issue, they would be found under the part of the document specifically concerned with "Respect for Human Embryos," for that is what we are dealing with in this matter. Msgr. Smith, however, spends most of his argument using part three of the instruction, "Interventions Upon Human Procreation," as if adoption could be compared to procreation (or one of its abuses).

13 This is an important point to keep in mind. An infertile couple, for instance, who would just as well use artificial reproductive techniques in begetting a child but choose to adopt a frozen embryo instead (for whatever reason) are, I believe, in the moral wrong. What we are discussing here is the rescuing of frozen embryos through adoption, not simply another means for couples to increase the size of their family.

14 Furthermore, Donum vitae defines surrogate motherhood as "a) the woman who carries in pregnancy an embryo implanted in her uterus and who is genetically a stranger to the embryo because it has been obtained through the union of the gametes of 'donors'. She carries the pregnancy with a pledge to surrender the baby once it is born to the party who commissioned or made the agreement for the pregnancy. b) the woman who carries in pregnancy an embryo to whose procreation she has contributed the donation of her own ovum, fertilized through insemination with the sperm of a man other than her husband. She carries the pregnancy with the pledge to surrender the child once it is born to the party who commissioned or made agreement for the pregnancy." This hardly describes what a couple rescuing a frozen embryo through adoption is choosing to do. What the rescuing, adopting couple are choosing to do cannot be compared to either one of the two definitions of surrogacy precisely because the adopting couple have not entered into any form of agreement-contractual or otherwise-with the intention of surrendering the child back to the "party who commissioned or made agreement for the pregnancy." Surrogate motherhood is a way some couples illicitly choose to conceive children; adoption, on the other hand, has nothing in common with the conception of a child.

15 See n. 2 and its reference to Veritatis splendor.

16 If, for instance, I choose to contracept, I become a contraceptor; if I choose to murder, I become a murderer. The relationship between one's existential identity and the choices one makes is at the very heart of traditional Catholic moral theology.

17 Included here, of course, is the couple choosing any illicit means of artificial reproduction.

18 Yet another important distinction between the rescuing, adopting couple and the couple employing the means of artificial reproduction is that the latter tend to harbor the mentality that they have a right to beget a child. As the Catechism of the Catholic Church reminds us, however, "A child may not be considered a piece of property, an idea to which an alleged right to a child would lead" (n. 2378). The adopting couple, on the other hand, do not adopt the frozen embryo because they feel it somehow is their right. If, for example, there were no frozen embryos to adopt (and this is what we should strive to accomplish), then the couple would have to adopt elsewhere or remain childless. Please also recall n. 13.

19 Donum vitae, II, 8 (quoting Familiaris consortio, n. 14), states, "Physical sterility in fact can be for spouses the occasion for other important services to the life of the human person, for example adoption, various forms of educational work, and assistance to other families and to poor and handicapped children." The Catechism of the Catholic Church, n. 2378, states that infertile couples may "give expression to their generosity by adopting abandoned children or performing demanding services for others."

20 We should note that Msgr. Smith's question here does nothing to contest the liceity of the action per se; it is, rather, a question of prudence which involves a whole new area of consideration and deliberation. In saying this, however, I do not wish to belittle the role of prudence-far from it. It is, in fact, due to concerns of prudence that I believe only married women should be the ones to rescue a frozen embryo through adoption and that such persons should find immoral the manner in which the frozen embryo was first conceived. Hence, any argument advanced which claims that even the rescuing of frozen embryos through adoption by married women would constitute an imprudent proposal, albeit a licit action, should be considered elsewhere; this is not the line of argumentation advanced by Msgr. Smith.

21 Of course, I do not wish to say that all single mothers are incapacitated utterly to care for their children. However, even those single mothers, one hopes, would wish the situation were different.

22 As St. Augustine puts it, children are "to be received lovingly, nourished humanely, and educated religiously" (De genesi ad litteram, 9, 7).

23 It has to be acknowledged that to be implanted in the womb of a woman who subsequently gives it up for adoption after birth is a much better situation for the child than remaining in a state of frozen captivity; but, as we have noted, to be adopted permanently into a family is a still better situation for the child's well-being and stability. But, once again, this is a question of prudence, not an argument for or against the liceity of the action per se.

EDITOR'S NOTE: Because Mr. Surtees's article above is a response and critique of a position taken by Msgr. Wm. B. Smith in his monthly column in HPR, I sent a copy of the article to Msgr. Smith and asked him to reply. Following is his response:

Response: My original "A" to this "Q" remains: "In sum, this cannot be ethically obligatory, nor do I consider it an ethical option; but I would not be surprised if all do not agree and would welcome reasons why the above is incorrect" (HPR [October 1995] p. 74).

I welcome Geoffrey Surtees's reasons quite sincerely. Since he and I both accept the authentic teaching of the Church that is beyond dispute, I think it is helpful, useful and honest of HPR to provide a forum for faithful Catholics to engage seriously what is surely highly disputable.

On the first point, we do both agree that the CDF, Donum Vitae (2/22/87) does not directly answer this precise question. My first point in that regard was not to establish some universal negative precept, but, more modestly, to try to locate a "first principled insight" from DV. The insight is a valid one; its translation is not crucial to me but his own suggested translation fits so neatly his own conclusion that it looks like an "interested translation."

The basic objection to my printed answer is that I do not adequately read this as an "adoption." That is a correct objection. His article, in text and footnotes, uses the term "adoption" over 30 or 40 times.

The rescue couple wants to "adopt" the unborn which is true. They do not seek an artificial substitute for the conjugal act, although an artificial non-conjugal act will be placed. This unborn is already a living but frozen member of the human community-thus, it is "a question of adoption, not procreation or artificial reproduction."

But, is it only that? Is it only "adoption"? Personally, I have no doubt HOW this frozen embryo came to be, but I do doubt and still doubt that surrogate motherhood is a licit adoption procedure.

Again, I do not confuse the act of procreation with the result of procreation. Nor do I doubt that true adoption is a noble, loving and entirely licit deed. But, it seems to me, you have to stretch both the extension and comprehension of the term "adoption" to novel lengths to call this simply "adoption."

Indeed, if the child were born naturally, I would be among those who would praise and salute the generosity of the adopting parents. However, this is no simple "adoption" procedure!

In the above, I smuggled in the term "surrogate motherhood." While it is true that DV, II, 3 describes "surrogate motherhood" in that document as a pregnancy in which the embryo is implanted in the uterus of a complete or partial genetic stranger "with a pledge to surrender the baby once it is born . . . ." Clearly, in this case, there is no pledge to surrender the baby once born, but the direct opposite. Nevertheless, surely pledged surrender is not the only objection to surrogacy-and surrogacy is WHAT is going on here.

Thirdly and importantly, the response focuses clearly on what constitutes "the object of choice" for the adopting couple. Namely, "what" one chooses determines its moral identity: "the intelligible proposal being freely adopted by choice by the adopting couple is, simply enough, adoption . . . ."

This sounds to me like the language of the Grisez-May-Boyle school-a group of Catholic moralists I genuinely respect. However, I am unpersuaded that this particular application is a correct one.

I think we have here some over-reach, even a transfer, of the finis operis (what the couple does morally) with the finis operantis (the motive ["adoption"] that the same couple has in mind). What they first do morally (finis operis) is have the wife become a nine-month surrogate in order to adopt (finis operantis) the child upon birth.

I do not question the goodness of that generous goal and intention, but I am unpersuaded that the chosen means to that good end is a licit means.

Quite recently, Fr. G. Concetti, O.F.M. took up some of the same questions in L'Osservatore Romano (Eng. ed. #7/1428) of February 14, 1996, p. 12.

He reports accounts that some 9,000 frozen embryos in Great Britain languish in limbo labs forgotten by their parents but risk destruction because the time limits (possibly costs) imposed by law have expired.

According to the same London sources four possibilities are present: (1) continue their preservation in containers; (2) request the parents to reclaim them, or (3) upon request, offer them to childless couples; and (4) consign them to death or improper use.

Of the third option, Fr. Concetti writes that it causes "perplexity and reservations." Apparently British law, like all other, provides for the adoption of children and infants but no legal provision exists for in vitro embryos.

Fr. Concetti sees the solution for this "blind alley" at the root, Donum Vitae: "We must be convinced that it is not licit to procure embryos for the purpose of procreation, even within marriage. It is even less so when donors are involved."

I suspect Mr. Surtees, Fr. Concetti and myself all agree-our society should not have gone down this street. Further than that, I cannot elicit from the L'OR article a precise opinion to this exact question of the "rescue" couple via surrogacy.

Perhaps, no one of us has properly framed the question yet, but, as I understand it, it still seems to me that physical surrogacy is not a licit means to a noble adoption. To say that the proper and only moral object of the rescue couple is "adoption" seems to me to confuse what they first do with why ultimately they do it-and that good end does not justify this particular means to it. n

-Msgr. Wm. B. Smith