Sex, Lies, and Embryos
The Implications of Granting Rights to Embryos
In our modern world, sex is no longer the exclusive method by which humans reproduce. Science has created a new group of options known as assisted reproductive technologies, or ART, that challenge our understanding of parenthood and biological relationships. Yet despite the fact that (or perhaps because) these acts of reproduction occur without heterosexual intercourse, taboos around sex still affect societal reactions to these new technologies and serve to obscure their biological, legal, and ethical implications. In a corollary of the socially conservative mandate that all sex be procreative, it appears that the radical right would also demand that all procreation be sexual.
Although social conservatives have not been able to stop the use of ART, they sometimes have found ways to limit its application in a manner that is consistent with their worldview—particularly their ideologically driven definition of when human life begins and, accordingly, becomes endowed with certain rights. If one believes that human life begins at “conception” and if one equates “life” with “personhood,” then logic would have it that human embryos are people with rights.
The statutes go on to provide the fertilized ovum with an entitlement to sue or be sued.
Of course from a medical standpoint, pregnancy—whether conceived naturally or artificially—does not begin until an embryo is implanted in a womb. But conservative absolutists have worked hard to obfuscate this fact in order to confuse the American public and promote their agenda of assigning rights “from the moment of conception.” Although conception is a process and cannot be identified as occurring at a specific moment in time (which is one reason why implantation is used to mark the beginning of a pregnancy), this strategy has allowed conservatives to launch a seamless attack on abortion, oral and emergency contraception, and now ART.
When it comes to legislation regarding embryos created by ART, Louisiana has taken the lead in promoting the view that frozen embryos have individual rights. Louisiana’s statutory scheme regarding human embryos was enacted back in 1986 and is unique both in its broad scope and dangerous implications. A close examination reveals that the entire law is intended to codify the idea that full personhood exists as soon as an egg has been fertilized by sperm. Despite conflicting with both medical facts and the religious and philosophical beliefs of many Americans, the law has been on the books for over 20 years as part of an orchestrated attempt to undermine a woman’s right to have an abortion, as well as other fundamental rights discussed below.
To begin with, the Louisiana law defines a human embryo as a fertilized ovum “composed of one or more living human cells and human genetic material so unified and organized that it will develop in utero into an unborn child.” The use of the term “unborn child” rather than “fetus” is telling, given that the former phrase is a favorite of the “Pro-Life” movement that opposes abortion rights.
Next, the applicable laws state that an “in vitro fertilized human ovum exists as a juridical person until such time as the in vitro fertilized ovum is implanted in the womb; or at any other time when rights attach to an unborn child in accordance with law.” (“Juridical” means “of or pertaining to the law, jurisprudence, or the administration of justice; legal.”) The statutes go on to provide the fertilized ovum with an entitlement to sue or be sued.
In other words, the state of Louisiana has assigned to human embryos a legal identity with rights that can be litigated in court—regardless of whether the embryo is in a Petri dish in a lab or in a womb, so long as rights have “attach[ed] to an unborn child.” Of course, determining when rights attach has everything to do with the continuing validity of Roe v. Wade, the Supreme Court decision that established a constitutional right to abortion. A major piece of the “Pro-Life” movement’s strategy has been to convince the Supreme Court to redefine legal personhood so that rights arise at fertilization and override a woman’s right to have an abortion.
To ensure there is absolutely no question about the status of the embryo, the law categorizes a fertilized ovum as “a biological human being” and not the property of the physician, the facility that employs the physician, or the “donors” of the sperm and ovum. Fertility patients who have provided genetic material to create an embryo are given two choices. If they “express their identity,” then their rights as parents will be preserved. But if they fail to do so and “renounce” their rights, then the physician will become the temporary guardian of the fertilized ovum until “adoptive implantation” can occur. A court also may appoint someone to “protect the in vitro fertilized ovum’s rights.”
Again, the language is illuminating. The fact that the embryo will be “adopted” rather than “donated” underscores the notion that an embryo and a child are one in the same. It also is notable that under the law only married couples may receive an embryo for “adoptive implantation”—a clear rejection of homosexuals and single people as legitimate parents.
The implication of this provision is, once again, that an embryo should be thought of as a child.
Under this set of laws, a viable embryo may not be destroyed intentionally. An embryo will only be considered unviable if it does not further develop after 36 hours in an unfrozen state. The physicians and medical facilities that perform in vitro fertilization are charged with safeguarding the fertilized ova in their care. However, the law does provide some protection to these physicians and medical facilities—if someone brings a lawsuit against them on behalf of a fertilized ovum, they will be immune from any liability if they are found to have acted in good faith.
The judicial standard to be applied to any disputes that arise is the “best interest of the in vitro fertilized ovum.” I am not making this up. The “best interest” test is one that traditionally has been applied to custody disputes regarding born children. Importing this standard to the realm of embryo disposition is questionable, as child custody can only be determined once parenthood has been established. Applying this standard to these circumstances completely ignores the fact that the question to be answered is whether one will become a parent at all.
The implication of this provision is, once again, that an embryo should be thought of as a child. This conclusion is further bolstered by the fact that the law provides no guidance for how to determine what the “best interest” of an embryo might be. But given that the law prohibits the intentional destruction of an embryo, it appears to presume that the best interest will always be implantation and gestation.
Clearly, it is problematic that this statutory framework invests non-sentient, microscopic organisms with rights—including, apparently, the right to be gestated and born—thus setting up a not-so-veiled challenge to the right of a woman to abort a nonviable fetus for any reason and to abort a viable fetus if necessary to preserve her health or life. But it also raises a number of significant constitutional issues beyond the right to have an abortion.
First, it prohibits fertility patients from choosing to discard their unused embryos or donate them to research, which denies them their right to determine the disposition and use of their own genetic material. This provision implicates their right to privacy, as well as their right to bodily integrity and decisional autonomy. Individuals must always consent to medical research, but it is they, not the government, who must exercise that consent.
Second, it transforms fertility patients who cannot or do not wish to use all the embryos they have created into egg and sperm donors, regardless of whether they consent. For those patients who do not wish to have their genetic offspring born and raised by another family, such a rule violates their right not to procreate. As the Supreme Court has said, “If the right to privacy means anything, it is the right . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.”
But embryos and children are patently not the same and the law should not treat them as such.
Finally, the Louisiana laws deny genetic parents the right to provide meaningful consent to donate their embryos to prospective parents. In every state, women who are pregnant and intend to put a child up for adoption have a time period after the birth of the child to change their minds about the adoption. Yet Louisiana’s embryo laws effectively mandate consent for a future adoption before a pregnancy has even begun, with no opportunity for changing one’s mind at any point.
As such, this requirement conflicts directly with Louisiana’s adoption law, which does not allow a birth mother to surrender her child until the fifth day after the child’s birth. It also is inconsistent with some states’ laws that provide surrogate mothers a period of time after a birth to decide whether to keep the child or surrender it to the intended parents, as previously promised. The consistent justification for both types of laws is that prior agreements to waive parental rights and responsibilities are unenforceable because people cannot truly understand what it is they are giving up until their child has been born. The implicit acknowledgment in these safeguards is that birth and conception are separate and distinct events.
None of this is to say that human embryos do not have value and significance in our society and should not be treated with respect. But embryos and children are patently not the same and the law should not treat them as such.
Simply because conservatives have sought to limit the uses of ART and their byproducts does not mean that, as progressives, we should promote their unrestricted use. There are legitimate progressive concerns to be raised and addressed as fertility treatments become more and more common—concerns including the health and well-being of women who undergo fertility treatments, donate eggs, or agree to be surrogate mothers; the risk of multiple pregnancies; the use of embryo screening for specific genetic or physical characteristics; and the access children of ART have to their own medical and genetic history.
We should not, however, let these strategic conservative assaults go unanswered. In our country’s epic battle over abortion, the people who rely on ART to create their families are being placed on the front line, but the rights of all of us are under attack. If we value individual freedoms, healthy families, and responsible scientific and medical progress, we must be vigilant in monitoring right wing attempts to control the practice of ART, thoughtful in our response, and proactive in promoting our own views of the appropriate parameters of baby making in the 21st century.
Jessica Arons is the Director of the Women’s Health and Rights Program and a member of the Faith and Progressive Policy Initiative at the Center for American Progress. She is currently working on a report about Assisted Reproductive Technologies and the Law, due for release in the winter of 2007.
1) La. R.S. 9:121-9:133 (2007).
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