Abstract
This essay has two purposes. The first is to argue that our moral duties towards human embryos should be assessed in light of the Golden Rule by asking the normative question, “how would I want to be treated if I were an embryo?” Some reject the proposition “I was an embryo” on the basis that embryos should not be recognized as persons. This essay replies to five common arguments denying the personhood of human embryos: (1) that early human embryos lack ontological individuation; (2) that they are members of the species Homo sapiens but not yet human persons; (3) that the argument for personhood commits the “heap argument” fallacy; (4) that since human procreation in nature is inefficient, human embryos cannot be persons; and (5) the “burning building” scenario proves that all arguments for personhood are irrational or inconsistent. The second purpose is to set forth and criticize in light of the normative judgement defended in part one the present legal situation of cryo-preserved embryos in the U.S. The essay ends by proposing legislative reforms to protect ex utero human embryos.
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Notes
The Jewish Talmud, for example, teaches that “what is hateful to you, do not to your fellow man” (Babylonian Talmud, Tractate Shabbath, Folio 31a; see also Tobit 4:15). The prophet Mohammed taught his followers: “Not one of you is a believer until he desires for his brother what he desires for himself” (Forty Hadith of An-Nawawi, no. 13). Kant gave us his famous Categorical Imperative, which requires that we act on a principle that “contains in itself its own universal validity for every rational being” [1, p. 105]. Plato, Aristotle, and Seneca all proposed their own versions of the principle of fairness.
Organisms are living bodily beings either composed of parts or with the active potency to develop parts (e.g., a zygote) that have separate but mutually dependent functions which act in a coordinated manner for the good of the body as a whole. For a helpful discussion of the concept of organism as it is used here, see Condic and Condic [2].
Michael Tooley works from a similar definition (to a different conclusion) [3, p. 167].
Smith and Brogaard argue that “the cells [of the embryo] form a mere mass, being kept together spatially by the thin membrane (the zona pellucida), which is inherited from the egg-cell before fertilization, but there is not causal interaction between cells. They are separate bodies, which adhere to each other through their sticky surfaces and which have at this point only the bare capacity for dividing (they neither grow nor communicate)” [7].
Moreover, as Gómez-Lobo argues, there is no necessary link between indivisibility and individuality: “If indivisibility were a necessary condition for individuality, then there would be no material individuals. After all, any material object can be pulled apart or dismantled. No car would be an individual car, but only a collection or package of car parts, likewise no living body would be an individual organism, but only a colony of cells.” Individuality, he concludes, does not require indivisibility [10].
William Hurlbut, M.D., argues that even before the zygote divides the “anterior-posterior axis appears to be already specified” [11].
The work of Magdalena Zernicka-Goetz, for example, has given evidence that early embryos are not merely balls of undifferentiated cells, but systems in which cells from their first divisions show preferences for adopting certain positions regulative of developmental fate [12].
In an influential article published in 1970 resuscitating Aquinas’s argument for delayed ensoulment (“hominization”), Joseph Donceel, S.J., writes: “The least we may ask before admitting the presence of a human soul [and hence a human person] is the availability of these organs: the senses, the nervous system, the brain, and especially the cortex. Since these organs are not ready during early pregnancy, I feel certain that there is no human person until several weeks have elapsed” [15]; see also [16, 17].
Singer argues that functional rationality and self-consciousness are required for personhood [18, pp. 169–170]; Callahan that personhood requires “a developed capacity for reasoning, willing, desiring and relating to others” [13, p. 497]; and Tooley that “the property of being an enduring subject of non-momentary interests” makes one a person [3, pp. 303, 407]; for all three, embryos and newborns are not persons.
The term is taken from Aquinas (Summa Theologiae I, question 77, article 8c) and means literally “in principle or root”; cf. question 77, article 5, reply to objection 1 [19, p. 389].
I use the term “true embryo” to distinguish it from what Austriaco terms “pseudo embryos,” namely hydatiform moles, teratomas, and parthenotes [20].
I follow here Grisez’s formulation [6, p. 19].
Tooley argues that embryos and fetuses are merely potential persons, and that it is not intrinsically wrong to kill potential persons, although he even doubts that they are potential persons (i.e., possess an “active potency”) since they will not develop properly without proper nutrition and environment. His concept of “active potency” is inadequate. Possessing sufficient internal resources for self-directing development to proper maturity for exercising rationality does not mean controlling one’s external conditions. If it did, one would be forced to deny that many who are undeniably persons ever possessed the active potency for personhood (e.g., small children and severely congenitally disabled individuals). Since every living being requires hospitable conditions for the actualizing of its intrinsic capacities, it is perfectly reasonable to qualify the definition of active potency by saying “given the right external conditions will develop itself …” [3, pp. 166–167, and all of Chap. 6].
Peter Singer goes further and argues that they are persons; he thinks that in time whales, dolphins, elephants, monkeys, dogs, pigs and other animals may be shown also to be persons [14, pp. 180–183].
Humans develop in different ways (biologically, psychologically, morally, spiritually, etc.). I am referring here to organismic development.
The problem of animal–human hybrids raises quantitative questions pertaining to a thing’s kind, but these questions are not relevant to the thesis of this essay.
The working group was writing on the problem of euthanasia.
Fertilization is itself a continuum. But even though we cannot pinpoint the “moment” of conception, this does not constitute grounds for denying that conception is itself an event or that there is—by metaphysical necessity—a “point” at which the human being begins to exist.
See in particular Chap. 11 on “fallacies” [28].
George Annas argues that “if embryos are children, there have been many more children in the world than we have thus far acknowledged … and if we valued children, we would have to do something about this” [33, pp. 20–22].
Dr. John Opitz, Professor of Pediatrics of Human Genetics, Obstetrics and Gynecology at the University of Utah’s School of Medicine and University Professor of Medical Humanities at Montana State University, speaking before the President’s Council on Bioethics on January 16, 2003, stated that he thought the high rate of loss of early conceptions resulted from gross abnormalities, as yet undetectable [36].
“Human ethics … almost universally rejected the argument of the researchers at the Willowbrook Home that they could deliberately infect retarded children with hepatitis because many of them would develop it anyway” [37].
Toby Ord states that those who argue from the moral status of the embryo to the conclusion that embryo destructive research is immoral hold that “the embryo has the same moral status as an adult human being.” Precisely speaking, this is not true. Though it is true that the fundamental moral status of adults arises from the same reality that characterizes embryos—they both share the status of persons. The status of adults arises in addition from relationships and commitments that embryos do not share. Adults are husbands, wives, mothers, fathers, teachers, citizens, employers, neighbors, congressmen, scientists, etc. From each set of social relations arises rights and duties, often very serious, which invest adults with a moral standing in the community distinguishable from embryos. This additional dimension contributes significantly to the greater loss we feel from the death of some adults than from the death of embryos. The interactions and interdependencies involved in these relations give rise to an affective solidarity between developed persons that leads some such as Ord to conclude falsely that adults possess a fundamental moral status not shared by embryos; see [29, p. 12; see also 18].
Nor would Noah Markham. George and Tollefsen begin their book Embryo: A Defense of Human life with the remarkable story of the life of Noah Markam [9, pp. 1–2]. During the floods of Hurricane Katrina in New Orleans, 10 police officers in a flat-bottom boat rescued Noah, who was trapped in a flooded hospital. At the time, Noah was an embryo frozen in liquid nitrogen. Sixteen months later, on January 16, 2007, Noah was born to the Markam family. Did the police officers rescue Noah?
The survey was jointly undertaken by researchers from the RAND Corporation and the Society for Assisted Reproductive Technology (SART). The survey was designed to inform the policy debate by providing accurate data on the number of frozen embryos at fertility clinics in the United States.
In the U.S., the persons responsible for creating the embryos are also responsible for determining what to do with their excess embryos. For a summary of the way excess embryos were earmarked in 2002 see [41].
The term donation is commonly used to designate the act of putting an embryo up for adoption by its progenitors. Because it is inappropriate to speak about the donating of a person, I put the term in quotation marks in the text.
Data was provided by 422 clinics. Available at http://www.cdc.gov/ART/ART2005/index.htm.
The only federal law addressing the field of assisted reproduction is the Fertility Clinic Success Rate and Certification Act of 1992. It deals with non-mandatory state guidelines for certifying embryo laboratories, but provides no regulation for the treatment of embryos. There are also non-mandatory federal guidelines for clinics to report on ART/IVF success rates, i.e., percentage of cycles that result in successful pregnancy and childbirth.
In 1996 Congress attached language to the annual appropriations bill funding the HHS and the National Institutes of Health prohibiting the use of federal funds for any research that destroys, discards or seriously endangers human embryos, or that creates human embryos for research purposes. This provision, known as the Dickey-Wicker Amendment, has been attached to the HHS appropriations bill each subsequent year. At the end of his tenure in office, President Clinton approved federal guidelines intending to side-step the Dickey-Wicker Amendment (which he formerly supported) by permitting the NIH to fund research on stem cells derived from frozen embryos slated for destruction at fertility clinics; the embryo destruction per se would not be funded by the NIH, but only research on the stem cells subsequently derived. To prevent this loophole from being exploited, in August 2001, newly elected George W. Bush passed an executive order stipulating that NIH dollars could only be used to fund ESC research on certain pre-approved stem cell lines created by that date.
Five other states have statutes expressly or implicitly banning embryo destructive research on IVF embryos (LA, ME, MN, NM and PA); others have laws governing the donation of gametes (ID, FL, NY), and restricting public funding for IVF treatment (KY) and embryo destructive experimentation (IN, KS, NE, AZ). For statistics, see [43].
Ironically, after transfer into a woman’s womb, the embryo is demoted again to the status of non-person by the U.S. Supreme Court decision Roe v. Wade.
New Mexico also requires mandatory “donation” of unused embryos for purposes of implantation. See [45, p. 154, note 15].
But neither is a viable fetus considered a legal person, since according to Roe a woman may legally procure an abortion at any time in the pregnancy provided the abortion is considered necessary to preserve her health; health is broadly construed by the Supreme Court to mean “all factors” that affect the woman, including “physical, emotional, psychological, familial, and the woman’s age” (see [47, Sect. 4]).
The following quotes from court cases are taken from [48].
In another case of a divorcing couple in NJ, a husband who allegedly had made a prior oral agreement to destroy the embryos in case of divorce, now wished to preserve the embryos either for his future use or for donation to infertile couples. The trial court ruled in favor the wife and ordered that the frozen embryos be destroyed. See [49].
In Doe v. Klein (9th Cir. U.S. App. 2007), the plaintiff, a frozen embryo at the California Institute of Regenerative Medicine was suing the institute on behalf of itself and approximately 200 other embryos similarly frozen. The District Court dismissed the case for “lack of venue” and the dismissal was upheld by the 9th Circuit Court of Appeals [48]. Lack of venue meant that some of the defendants were not within the geographical jurisdiction of the Court, and that no act or offense related to the case had occurred within the venue.
For example, a judge in a 2005 Illinois case, Miller v. Am. Infertility Group, No. 02L7394 (Cook County, Ill., Cir. Ct. Feb. 18, 2005), refused to dismiss a wrongful death suit against a fertility clinic in Chicago (which accidentally destroyed a couple’s frozen embryos) explaining that “a pre-embryo is a ‘human being’… whether or not it is implanted in its mother’s womb” (quoted in [50]). Judge Jeffrey Lawrence referenced another Illinois law that asserted that an “unborn child is a human being from the time of conception and is, therefore, a legal person.” The ruling has sparked considerable controversy and its overturning is predicted. See http://www.csmonitor.com/2005/0323/p02s02-ussc.html.
Summaries of laws governing the treatment of human embryos for 16 countries are provided at [51].
Six months after the Bioethics Law was passed, the French medical association issued a strong statement criticizing the new law for failing to provide a clear legal definition of the status of the embryo. It expressed concern that under the law embryos would become the objects of manipulation and disposal. The French doctors stated that “the embryo, whatever its stage of evolution, cannot be reduced to simple material. There is no possible comparison between the human embryo and the embryo of another species. Entering as of its conception into a collective and singular history, the embryo… belongs to our humanity” [53].
Remarkably, a decision by France’s High Court, the Cour de Cassation, in February 2008, recognized the legal personage of human embryos when the Court ruled that parents can legally name, register and officially bury a stillborn or miscarried baby at any stage of development. See [55].
The Constitution was adopted by public referendum on April 18, 1999. Article 119 is titled “Medical Assistance to Procreation and Gene Technology in the Human Field” [54].
The Act was approved by referendum in November 2004.
“Elle a pour but de prévenir toute utilisation abusive d’embryons surnuméraires et de cellules souches embryonnaires, et de protéger la dignité humaine” (author’s translation) [56].
The Belmont Report was prepared in April 1979 under the title “Ethical Principles and Guidelines for the Protection of Human Subjects of Research.” Its ethical norms are still used to review research proposals conducted or supported by HHS that involve human subjects. Current NIH requirements for research on humans derive from Belmont’s principles. The norms conform to the justly famous Declaration of Helsinki, adopted by the 18th World Medical Assembly in 1963 and revised in 1975 by the 29th Assembly; see [58].
I draw on the formulations of several proposed by Samuel B. Casey in a Power Point presentation at conference Emerging Issues in Embryo Donation & Adoption. Washington, D.C., May 29–31, 2008 [48].
I propose the concept of a temporary or emergency adoptive parent in “In Defense of Transferring Heterlogous Embryos” as a reply to those who argue that one who chooses to gestate a heterologous embryo is morally obliged to remain the permanent adoptive parent [59]. Although I think it is ideal that one’s gestational mother and social mother be the same person, I think a woman can legitimately choose to gestate an embryo and bring the baby to term as an act of rescue and then put the baby up for social adoption to suitable parents. The essay does not discuss the important question of the conditions for suitable social adoptive parenthood.
See a young woman’s account of suffering feelings of alienation and loss at the knowledge that her father was an anonymous sperm donor in [60].
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Acknowledgments
The author would like to thank Germain Grisez, Patrick Lee, Robert P. George, Richard Doerflinger, Christopher Kaczor, William E. May, Rev. Thomas Berg, L.C., Stephen Napier, Peter F. Ryan, S.J., Kim K. Schaftner, M.D., Paige Comstock Cunningham, and two peer referees for very valuable criticisms and input into this essay.
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Brugger, E.C. “Other selves”: moral and legal proposals regarding the personhood of cryopreserved human embryos. Theor Med Bioeth 30, 105–129 (2009). https://doi.org/10.1007/s11017-009-9099-z
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DOI: https://doi.org/10.1007/s11017-009-9099-z