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From Changing Hearts and Minds to Changing Laws Part II

My last E-Brief replied to a number of common arguments denying the humanity/ personhood of the human embryo.  Since then, defenders of nascent human life suffered several serious defeats in Great Britain.  On May 19th, British MPs voted to defeat three important pro-life amendments to the controversial Human Fertilisation and Embryology Bill passing through Parliament.

The first amendment, defeated by a majority of 160, would have banned the creation of “human admixed embryos” (animal-human hybrid embryos) made by combining an enucleated animal egg (e.g., a cow egg) with a complete nucleus from a human cell (called technically “interspecies somatic cell nuclear transfer,” or interspecies cloning).  The second, defeated by a majority of 63, would have banned the creation of “true hybrids” made by directly fertilizing an animal egg with human sperm, or vice-versa.  The third, defeated by a majority of 71, would have decreased the legal limit for abortion from 24 weeks (one of Europe’s highest) to 22.  MPs also voted to permit the creation of “savior siblings” (children created through IVF to assure their tissues are genetic matches of sick siblings in order to become sources of transplantable tissues for their siblings) and to annul the requirement that fertility clinics consider a child’s “need for a father” before accepting patients for IVF.

One good thing that has come out of the U.K.’s controversial debate over hybrid embryos is it has led in part to pieces of legislation being presented in the U.S. Senate (November 2007) and House (April 2008) banning their creation.  Passing these and other pieces of legislation in defense of human embryos is more important than ever.  This E-Brief will address the way the embryo is presently treated in U.S. law and then consider legislative possibilities for protecting human embryos.

Prior to the advent of cryopreservation techniques (embryo freezing) in the 1970s, the problem of ‘surplus’ human embryos did not exist.  As the unregulated IVF industry burgeoned in the 1980s and 90s and began to utilize the technique in earnest, tens of thousands of human embryos became quietly consigned to dormant homes in storage cans.  For two decades the problem went under the radar.  Then with the successful isolation of human embryonic stem cells in 1998, the eyes of researchers turned covetously towards the cans as a potentially abundant source of experimental material.

Presently there are no federal laws in the U.S. regulating the care of human embryos in the laboratory or IVF clinics.  The Dickey-Wicker Amendment (1996) bans federal funding for research creating or destroying human embryos, which considerably limits the scope of embryo destructive experimentation.  But private money is unrestricted and in most states human embryos may be created for destructive purposes at any time and ‘spare’ embryos may be earmarked for destruction or destructive research by their custodians at any time.

The few laws that exist are at the state level.  Louisiana is the only state that considers the embryo in a laboratory a juridical person under the law (which means ironically that embryos are better protected in labs than they are in wombs, thanks to Roe vs. Wade).  Michigan and South Dakota regulate the treatment of embryos in labs.  Only Pennsylvania regulates the activity of IVF clinics and the IVF procedure.  A few states regulate the donating of embryos to those willing to adopt them (CA, OH, OK, TX) and two regulate embryo adoption (FL, LA).  Only five have laws expressly or implicitly banning embryo destructive research on IVF embryos (LA, ME, MN, NM and PA).

When questions arise over the dispositions of embryos (usually by divorcing couples arguing over their frozen offspring), problems end up being handled by the courts.  The two cases heard by State Supreme Courts, Davis v. Davis (Tennessee, 1992) and Kass v. Kass (New York, 1998), agreed that frozen human embryos (in the words of Davis) were neither “persons” nor “property,” but occupied “an interim category that entitled them to special respect because of their potential for human life.”  The ‘neither persons nor property’ maxim is now precedent and does quite a bit of work in disputes over embryos. The maxim might leave one with the impression that embryos are at least considered more valuable than ordinary property.  The impression is false.  Since the majority of embryo cases, as I said, are initiated by divorcing couples, the courts routinely treat embryos like property assigning possession entitlements to one plaintiff over another.  But unlike disputes over ordinary property, plaintiffs in cases concerning human embryos (e.g., in Davis) are often motivated by the intention not to be a parent.  So Court rulings in their favor end up granting possession rights to parties who intend to destroy their property!  Embryos end up having fewer rights than ordinary property.

The situation is admittedly appalling and something needs to be done.  One place to look for concrete legislative ideas is European law.  Laws in Germany (1990) and Italy (2004), for example, stipulate that no more than three embryos may be created per IVF cycle and all three must be transferred into the patient’s uterus.  Both countries also prohibit freezing and discarding human embryos.  Even Switzerland with its liberal laws on research on surplus embryos restricts the number of embryos created in a given IVF cycle to those capable of being “immediately implanted” into a woman’s body.  The 1994 French Bioethic Law restricts IVF recipients to the living (excluding using gametes from post-mortem donors), to couples, heterosexuals, married persons or those in proven stable households, and those of reproductive age (excluding those who are post-menopausal).  Most of these sensible restrictions were conceived of and passed under an application of a “best interests of the child” standard.  The French law also prohibits harmful or lethal experimentation on embryos.

Legislative ideas on behalf of human embryos:
The human embryo is a human person at its earliest stage of development.  (As William E. May writes, a human embryo is “not a potential person, but a person with potential.”)  It therefore has rights proper to all persons, chief among them, as the Catholic Church affirms (see Donum vitae, 1986), the right to be brought into the world in the context of marital love and marital intercourse.  Treating embryos justly implies among other things refusing to instrumentally create them in labs and clinics.  Since IVF has become a powerful commercialized industry over the past thirty years, the prospects of shutting the industry down through legislative efforts are slim.  Limiting its reckless treatment of human life is the only realistic possibility.  And although attempts to enact federal legislation regulating IVF clinics have been unsuccessful in the past, time is of the essence.  The possibility of a pro-abortion White House joining forces with a pro-abortion congress next January forebodes the worst for the slight protections imposed by the Dickey-Wicker amendment.

Drawing on the examples of several European laws mentioned we can envisage desirable legislative possibilities for the just treatment of human embryos.
Most desirable would be:
• defining human embryos as legal persons under the law.  This would grant them immunities against malfeasance and    negligence that the rest of us enjoy.
If this is too ambitious, subsidiary laws could include:
• prohibiting the creation of human embryos for all destructive purposes, including stem cell research;
• prohibiting the creation of all types of human non-human hybrid embryos;
• prohibiting the creation of savior siblings;
• prohibiting therapeutic and reproductive cloning;
• prohibiting the use of embryos for any purpose other than serving their own preservation; this means freezing and discarding embryos would be prohibited, as would preimplantation genetic diagnosis (PGD) for purposes of eugenic screening;
• limiting to three the number of embryos permitted to be created per IVF cycle; and requiring that all three be transferred into the uterus of a living female human;
• restricting those who create human embryos with reproductive intents to living, heterosexual, married couples of reproductive age; (justified legally under an application of the “best interest of the child” standard);
• prohibiting oocyte (egg) and sperm donation;
As regards embryos already frozen at IVF clinics, federal laws should be passed facilitating their donation by their custodians, transferal into the uteruses of willing women, gestation and adoption by qualified couples.

Pro-lifers are familiar with working against the odds.  And the odds at present are powerfully stacked against the welfare of human embryos created in laboratories.  Many people do not see human embryos for what they are: tiny, embodied male or female human beings at the beginning of their lives.  If given the appropriate nurture (the kind that the rest of us received), they may have the opportunity to live the life of good works God has prepared beforehand for them to walk in.

We need to do for embryos what ultrasound has done for fetuses.  We need to humanize them.  Since they do not appear to us in a humanoid form, minds will need to be changed through sound and rigorous reasoning, charitable challenges to prevailing opinion and courageous attempts to change the laws.

Facts about state laws taken from Clarke D. Forsythe, “Who Will Fix the Supreme Court’s Mess?” in Defending Life 2008: A State-by-State Legal Guide to Abortion, Bioethics, and End-of-Life Issues (Americans United for Life, 2008).

*Copyright 2008 — Culture of Life Foundation. Permission granted for unlimited use. Attribution required.