Theoretical Medicine and Bioethics

, Volume 30, Issue 2, pp 105–129

“Other selves”: moral and legal proposals regarding the personhood of cryopreserved human embryos

Authors

    • Saint John Vianney Theological Seminary
Article

DOI: 10.1007/s11017-009-9099-z

Cite this article as:
Brugger, E.C. Theor Med Bioeth (2009) 30: 105. doi:10.1007/s11017-009-9099-z

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.

Keywords

Human embryoPersonhoodEmbryo experimentationCryo-preserved embryosFrozen embryosHuman rightsIn vitro fertilizationAssisted reproductive technology

The golden rule

Human reason tells us that the well-being of all people and not just our own well-being or that of our group is a reason to act, and hence requires of us fairness in choosing. Many diverse cultures, religions and philosophies have recognized and formulated a moral requirement that people be treated alike when there is no reason for treating them differently.1 Its most famous formulation is the Golden Rule stated by Jesus in the Sermon on the Mount: “Do unto others as you would have them do unto you” (Matt. 7:12, cf. Lk. 6:31). If any requirement of morality can be said to be universally recognized, this one can.

Two related points are indicated by this principle. The first is that our natural preference for ourselves and those persons near and dear to us poses dangers for the way we treat other people, especially those who are different from us and weaker than us. The second is that by consciously placing ourselves in the position of others, by asking ourselves, “how would I think and feel about this situation if I were in their shoes?”—in short, by thinking of other people as other selves can offer a corrective to the harmful biases that our self-preferences threaten.

This essay has two parts. First, it argues that our moral duties toward all human embryos, whether within their mothers’ wombs or ex utero, should be assessed in light of the Golden Rule. The Golden Rule presupposes a well-defined class of “others.” But what type of “others?” Not merely other things, like rocks or trees. It presupposes the other entities are like ourselves: that is, they are selves or persons. And yet we need the rule because the others are unlike ourselves: that is, they not exactly like me, with my distinctive personality—perhaps they are a different race, age, gender, and so on.

Invoking the Golden Rule in discussions about the justice of the treatment of human embryos implies that before we proceed, we must get clear about the boundaries of the class of others, and that the boundaries cannot be settled fairly by arbitrary line drawing. To proceed justly, we need to look at evidence and arguments for and against the personhood of the unborn, and make a judgement when in truth people begin. This essay argues that people begin when human organisms begin.2 Second, having established the Golden Rule as the appropriate norm for relating to human embryos, the essay sets forth and criticizes the present legal situation of cryo-preserved human embryos in the U.S. and proposes legislative reforms for rectifying our society’s treatment of human embryos.

I was never an embryo!

Some deny the proposition, “I was an embryo.” They think that the “I” by which they refer to themselves signifies an entity having a property an embryo lacks, so for them, an embryo was an organismic precursor to their personal life; it was not a person, but merely pre-personal. This raises the most important question of the human embryo debate. What is it about adult human beings that makes them persons and hence deserving of full respect? There are at least two possible replies. Either humans deserve respect in virtue of the kind of things they are, namely, living individual members of the species homo sapiens, or in virtue of some quality some human beings acquire and which not all share. Those who deny the proposition “I was an embryo” usually hold the second view.

In order to clarify the boundaries of the class of “others” that human embryos occupy, I reply to five common arguments denying their personhood.

Argument 1: Not yet individuated

The first argues that the embryo between day 1 and day 14 (i.e., between fertilization and the formation of the primitive streak) is not yet an ontologically distinct human individual, but rather a collection of individual cells each possessing an active potency to become an ontologically distinct individual.

Monozygotic twinning version

This conclusion follows from the fact that an embryo can undergo monozygotic twinning in the first 14 days. Since a thing naturally becomes only what it has an inherent active potential to become, the embryo must have had an inherent active potential to be more than one individual from the beginning.

The concepts of active potential and passive potential can clarify the distinction between two types of “becoming”: (1) becoming something in an identity-preserving way (e.g., the acorn “becomes” an oak tree), and (2) becoming something in a non-identity preserving way (e.g., the oak tree “becomes” a chair). In 1, the cause of the becoming is internal to the thing. The acorn possesses within itself all or most of the resources to bring it about that it will become an oak tree. In 2, the cause of becoming is external to the thing. The oak tree can only become a chair if acted upon by the external cause of a wood worker. We say that entity X has an active potency to become Y if and only if X possesses within itself all or most of the resources to bring it about that it will become Y. We say that it has merely a passive potency to become Y if the becoming of Y is only able to be brought about by extrinsic cause Z acting upon entity X.3 So an acorn has the active potency to become an oak tree since given the right conditions it will develop itself into an oak tree. But an oak tree has only a passive potency to be a chair, since it will never develop itself into a chair.

Returning to twinning, if an embryo splits into two or more embryos (the argument goes) it must have had an active potency to split from the beginning. But if it had an active potency to become more than one individual, then it cannot be considered an individual from the beginning [4, pp. 119–122, cf. pp. 170–172; 5, p. 63; 6]. Its individuation is settled only after the possibility of twinning ceases. Before this, it should be considered an aggregate of cells from which one or more individuals (or none) will arise.4

The possibility of entity X, however, splitting into two or more entities until time T does not prove that X lacks individuality before time T [8, pp. 123–125]. At least two arguments can demonstrate this. First, presuming that the premise of the twinning argument is true—namely, that the potency to split until time T means before time T entity X is an aggregate of potential individuals—the argument only works if the potency is active, that is, splitting is caused by the entity’s own internal resources—it splits itself. If the potency is merely passive, then the dividing of a human embryo can be likened to the dividing of a flatworm. If a flatworm is cut in two, the resultant parts go on to become whole flatworms. But no one denies that flatworms before being divided are individuated [9, p. 150].

It is far from certain that the potency of an embryo for twinning is an active potency. It might be that X was itself individuated and, being acted upon from the outside, divided into two individuals, one of which was continuous with X and the other a new individual. Or having being acted upon from the outside, individual X might have passed away and two new individuals begun. The simple possibility of twinning provides no argument at all as to whether the division arose from an intrinsic drive of the embryo, or from an extrinsic cause (i.e., twinning was anomalous to its natural development). We know from the flatworm that it is at least possible for an individuated entity to split and become two entities. To resolve the question, we need to look beyond the possibility of twinning.5

There is evidence that prior to day 14 an embryo is a single individual and not an aggregate of individuals. From the earliest cell divisions,6 there is intercommunication among the blastomeres so that they act as if they are parts of a whole [8, pp. 126–127]. It appears also that the blastomeres begin to differentiate from the first cell division and adopt positions that influence their developmental fate.7 Moreover, embryonic development is internally coordinated and its precise phases pre-established in accord with a program internal to the embryo and present from conception, again indicating that there is from the beginning an individual directing its own growth. Finally, the infrequency of monozygotic twinning (0.4% of births) indicates that there are genetic and cytoplasmic factors in the embryo that direct its development as a single organism. Twinning “does not appear to be either an intrinsic drive or a random process within embryogenesis,” but rather “a disruption of normal development by a mechanical or biochemical disturbance of fragile cell relationships” [11, p. 215].

This supports the conclusion that the human embryo between day 1 and day 14 is a single, developing organism, and that twinning does not arise principally from factors internal to the embryo but from factors extrinsic to it. The blastomeres in the embryo do not possess in themselves an active potency for twinning and whole organismic development; if they did then most would develop into distinct human individuals. Given the resiliency of the blastomeres during the early stages of embryonic development, blastomeres that “bud off” are sometimes able to compensate for the absence of their progenitor and form an independent organism.

Second, even given the premise of the twinning argument that an early embryo has an intrinsic drive to divide, why should it follow that it is not yet individuated? Imagine a conscious race of alien beings whose developing members split into two at the age of 10. The splitting is genetically coded for when the aliens first come into existence such that splitting seems to be an active developmental potency of the race. Would we not say that the aliens before splitting were individuated members of their race? Although their specific type of consciousness likely would differ from our own, upon what grounds would we deny that an alien’s consciousness before splitting was the consciousness of an individual?

Totipotency version

A related argument focuses not on the possibility of the whole entity for twinning, but on the property of totipotency of the individual blastomeres. A totipotent cell is capable of developing into a fully differentiated organism, including gestational support tissues such as the placenta and amniotic sac. Since totipotency characterizes blastomeres until cellular differentiation begins, the embryo before differentiation (it is argued) is not an ontologically unified individual, but rather a collection of individuals, each of which possesses the active potency for complete human development.

The reply is similar to the twinning argument: there is good, indeed, “compelling evidence” that the embryo in its first 2 weeks of life is not a mere aggregate of incidentally connected cells, but a single stable multicellular system coordinating its own complex activities for the sake of the developing whole [8, p. 127]. Totipotency should not be seen as an active potency of the individual cells making up an embryo, but rather a property that a blastomere can acquire if separated from the body of an embryo.

Moreover, even if we grant the premise that the cells in the early embryo are each actively totipotent, why should it follow that the early embryo is not deserving of moral respect? If the argument is that the early embryo is not a unitary developing individual, but an aggregate of developing individuals, should it not follow that the early embryo is deserving of at least as much respect as—if not more than—a single individual? If I am contemplating demolishing a house, and I ask whether anyone is inside, and the reply comes, “it seems to me there’s a lot more than one in there,” should I be more or less inclined to push the red button?

Argument 2: Human beings, but not yet human persons

The second argument against the personhood of human embryos is that because embryos lack specifically human properties, they lack a fully human status; although they may be members of the species Homo sapiens, they are not human persons. The property most commonly singled out (that embryos lack) is the exercisable capacity for a minimal expression of mental life [3, Chap. 5; 13; 14, p. 180, pp. 197–198, 217–218], or at least the differentiated organ development through which mental life can later be actualized (i.e., minimal brain and nervous system development).8 The argument is: since even the organs associated with human mental life do not develop until weeks after a human organism comes into existence, we can be confident that no personal entity is present during the early weeks of embryonic existence.9

Inherent natural capacities

The argument presupposes that personhood is an acquired property that emerges when certain capacities develop. My reply is to deny that human embryos entirely lack properly human capacities [9, Chap. 5]. There is a very real sense in which the brain, nervous system and all attendant human powers are present when the organism comes into existence. They exist in the organism inprincipio vel radice10 (in the form of radical natural capacities). A radical natural capacity is an active potency that a thing possesses in virtue of the kind of thing it is. Its actualization is part of the thing’s normal developmental trajectory. Although many of a developing organism’s radical natural capacities are not at once actualized, given the right conditions, and barring accident or pathology, in due course the thing will develop and exercise these capacities.

Developing what we said above, we can say that entity X has an active potency for property Y if and only if X possesses within itself all or most of the internal resources to bring it about that it will acquire property Y. A true human embryo possesses all the internal resources necessary to develop a distinctly human mental life.11 It possesses from its first moment of existence the genetic and epigenetic primordia of a brain and nervous system, the capability of directing and organizing its own development, and the active dynamism to project itself forward from morphological immaturity to maturity. It therefore is characterized from the beginning by a radical natural capacity (an active potency) for mental life and can be said to possess a rational nature.12 Its nature is rational in virtue of the kind of thing it is. If rationality is what makes one a person, and an embryo has a rational nature, is not an embryo by nature a person?

Some might reply, if an embryo is only rational in potency, then it is only a potential person.13 I agree that this would follow if the embryo had only a passive potency for rationality. For example, one might argue that a great ape is a potential person.14 Imagine that experimenters find a way of expanding the brain of a great ape (as in H.G. Wells’s The Island of Dr. Moreau), and it becomes able to protest that it was treated unjustly. Since it then would be reasonable to consider it a person, we might say it even now has a passive capacity to become a person. But it does not possess the internal resources to develop a brain that can support rational thought.

An embryo, however, has within itself the active disposition to develop itself, given the proper environment, to sufficient maturity for exercising rationality. In virtue of the kind of being it is, it has the radical capacity to reason and make choices. It is by nature therefore already a rational being. If rationality is the sufficient condition of personhood, and rationality is possessed by embryos in the form of a radical natural capacity; then embryos ought to be considered persons. To use William E. May’s expression: they are not merely potential persons, but persons with potential [21, p. 176].

Although “capacity” as I am using it here is not coextensive with the sense in which it is used by defenders of argument 2, is it not more reasonable to hold that the possession of a thing characterizes one’s relation to it more fundamentally than one’s use of it? Is not a boy whose inherited millions are being held in trust already a millionaire? I agree that if use of the money were perpetually excluded from the boy by nature of the terms of the trust, there would be little sense in calling him a millionaire. But if the money is his by right, and if in the normal course of things he will acquire sole use of his money, then to treat him now as a pauper would be unfair. This is even more the case if the money is inalienably his. Since the embryo’s possession of rationality (unlike the boy’s possession of his money) is both inalienable and intrinsic to the embryo—that is, the embryo is rational by nature, it follows that the human embryo is already a rational being and should be treated as such, although obviously not treated as if he or she had use of his or her rationality. We might say his or her rationality is being held in trust.

Why should the use of mental capacities confer special value on those who are capable? Is it not because beings who can exercise them are unique? But if those beings are unique, then the intrinsic value of mental capacities derives from those beings being the kinds of things they are. But they become the kinds of things they are from the moment they begin to exist [22, pp. 26–27].

Nature vs. development

An important distinction underlying my argument is between the nature of a living entity and its development.15 Human development begins when the human organism begins, which is at fertilization.16 But the existence of the organism developing does not admit of quantitative description. Its existence is essentially dichotomous—it is all or none. Now every naturally living thing exists as some kind of thing. As its existence is essentially dichotomous, so too is its kind. Something either is or is not (say) an earthworm or a dog. Its kind (or nature) is not more or less possessed.17 A human embryo is human in kind: “it will not articulate itself into some other kind of animal” [25, pp. 17–18]. Its humanness is not gained little by little. Although a human embryo is less developed, it is not less human than a fetus, newborn or adult. Rather it is what a human is at that stage of development.

Development, on the other hand, is the gradual unfolding of capacities during many, many years. Development, therefore, unlike a living thing’s existence and kind, is a continuum—humans can be more or less developed. From a new individual’s origin with the successful union of a sperm and ovum, human development is an organized continuum which will cease only if the organism itself ceases because it dies. And no line short of adulthood, if even then, can be drawn at which individuals do not lack some developmental fullness.

Arbitrary line-drawing

To establish a developmental milestone as the basis for determining who are and who are not persons is to ground personhood not in the possession of some attribute, but in its use (its exercisability). If the embryo has a radical natural capacity for sentience and rationality, it possesses the attributes already, and possesses them in virtue of its nature. Their exercisability is an accidental quality. Now it is only reasonable to treat things radically differently (i.e., as different according to their natures) when there is a radical and not a merely accidental difference between them. To treat an embryo as an object is to treat it radically differently from a person. But embryos, we have shown, possess sentience and rationality in a radical form. So embryos are not radically different, but only accidentally different from more mature human persons. Since the onset and degree of the exercise of accidental qualities differs for each person, to ground the attribution of personhood on a quality possessed only accidentally is arbitrary.

Some say the line distinguishing between non-persons (i.e., beings that are merely objects) and persons (i.e., beings with human value) should be drawn at day 14 of development, others at the anatomical development of a brain, others at possession of consciousness, and others at the manifestation of personal interests. Their choices do not agree because the development upon which they ground personhood is continuous, and intrinsically so, punctuated by morphological markers, but by no radical changes. Even those who argue that moral status increases gradually as development increases during gestation, must hold, if they hold that anyone possesses an inherently personal status, that there is a point at which the threshold of that status is reached qualifying them now for full moral respect. But the assignment of that point is subject to the same charge of arbitrariness.

A working group of British philosophers (which included Elizabeth Anscombe) criticized such arbitrary line drawing:

Arbitrary choices may be reasonable and unavoidable in determining some entitlements…. But if one’s understanding of human worth and dignity commits one to being arbitrary about who are to be treated justly (i.e., about who are the very subjects of justice), it is clear that one lacks what is recognizable as a framework of justice. For it is incompatible with our fundamental intuitions about justice that we should determine who are the subjects of justice by arbitrary choice [26, pp. 123–124].18

We need a non-arbitrary foundation for judging when people begin. Fertilization is the only point in embryogenesis and human development when something radically new emerges.19 Before fertilization, there are only gametes, an oocyte (egg) and spermatozoon (sperm). They are human insofar as they are human cells, and they are living, but they are not living human organisms. Rather, they are body parts of living human organisms. At fertilization, something human and living “in a different sense comes into being” [27, p. 87]. The egg and sperm cease to be and a new organism, distinct from the father and the mother, begins. Now if there were no radical difference between any groups of living beings, then we would have to draw an arbitrary line to define who are and who are not persons (in a manner similar to the way we arbitrarily draw a line to determine when someone is intoxicated, but that is because there is no radical break from being sober to being drunk, just a continuum that ends up producing a significant difference). But those who argue that embryos are not persons are ignoring the radical difference between sperm and ova on the one hand and a whole though immature human being on the other and fastening onto some arbitrarily selected line.

This new human organism is whole, self-organizing, and genetically distinct from its parents. It possesses the active potency for sense organs and a brain. And it possesses the intrinsic dynamism to self-direct its development from immaturity to maturity. The individual is tiny and does not look human, or at least does not possess a humanoid appearance. But this is undoubtedly a unique, individual human being, and this new life began at fertilization. This proposition is not based upon knowledge derived from religious sources, but upon evidence available to everyone. It is also affirmed in the most widely used textbooks in embryology. Moore and Persaud’s The Developing Human, for example, states, “Human development begins at fertilization when a male gamete or sperm (spermatozoon) unites with a female gamete or oocyte (ovum) to form a single cell—a zygote. This highly specialized, totipotent cell marked the beginning of each of us as a unique individual” [24, p. 15, emph. added].20

Fertilization is the event at which to draw the line. After fertilization, each newly acquired power is the unfolding of what was already radically present as an active potency. It is therefore reasonable to hold that embryos are persons in virtue of their humanity.

Argument 3: The argument for personhood is a fallacious “heap argument”21

In reply to the “arbitrary line” argument, a critic might concede that the lines drawn are arbitrary, but argue that this does not falsify the thesis that an embryo is not a person. From the fact that the discreet point cannot be identified, it does not follow that there is no point—no transition from prepersonal to personal—and that a one-celled embryo is therefore a person, any more than it follows from the fact that we cannot identify the pound (or ounce) that, when gained, makes a thin person fat that no transition from thin to fat ever takes place.

Making this kind of criticism, Tooley states, “the point is simply that the absence of significant differences between successive members of some series, or between successive stages in some process, provides no reason at all for concluding that there are no significant differences between non-successive stages or members” [3, pp. 169–170]. Tooley concludes, “an entity cannot be a person unless it has developed to the point where it is capable of at least some sort of mental life.”

Although the heap argument is a fallacy, the argument for the personhood of embryos made here does not commit it. The argument is not that there is no difference between an embryo and an infant simply because the development from the one to the other is continuous—that would be fallacious since you can get a significant difference by the addition of several insignificant ones. The argument is that there is no significant difference because there is no radical difference between an embryo and infant, only the accidental difference of their functional abilities. The claim of “arbitrariness” therefore is not grounded in the premise that there are no real differences between embryos and infants (or adults), but rather that the differences grounding the radically different valuing of the two (and hence justifying the radically different treatment) are merely accidental differences, differences between what the two groups can do, and not a difference in their kinds.

Argument 4: Human procreation is inefficient

The fourth argument against the personhood of embryos proceeds from the empirical premise that procreation is naturally inefficient: since many naturally conceived embryos fail to implant and hence die (numbers in the literature range from 45 to 75% [29, p. 16; 30, p. 81; 31, p. 78; 32]), those who regard embryos as persons must hold that a large part of the human race does not live long enough to be recognized by a pregnancy test.22 But nobody regards the high death rate of embryos as a health crisis (Harvard’s Michael Sandel writes, “If the embryo loss that accompanies natural procreation were the moral equivalent of infant death, then pregnancy would have to be regarded as a public health crisis of epidemic proportions” [34, p. 122]), and people do not mourn the loss of embryos as they do the death of children; it is therefore unreasonable to hold that embryos possess the full moral status of persons.

There are really two arguments here: the first is that because a large proportion of early embryos die naturally, therefore they are not persons; and the second, because our emotions are not significantly moved by their deaths, therefore they are not persons. There are four replies to the first argument. First, the argument is a non sequitur. Procreative inefficiency provides no reason whatsoever for concluding that early embryos are sub-personal. In Britain in the mid-eighteenth century, nearly 66% of children—rich and poor—died before the age of 5, but that hardly proved that living children before the age of 5 were not persons and thus were legitimately submitted to lethal experimentation [35]. Second, some of what were thought to be embryos were failed conceptions that would have resulted in hydatidiform moles, teratomas, and other anomalous non-organismic outcomes. So the percentage of true embryos lost was actually lower, perhaps much lower.23 Third, some of the loss can be accounted for by extrinsic factors, including diet, behavior and external pollutants. As more sophisticated medical technology supports the pre-implantation embryo, the mortality rate likely will decrease, as the child mortality rate decreased over the past 250 years. Finally, as Richard Doerflinger has pointed out, the implicit reasoning of those who make this argument is that since large numbers of embryos die naturally and people tolerate it, people may rightly choose to kill embryos. The fallacy, of course, is concluding from the fact that something happens naturally that one can rightly choose to do it.24

The second argument is based on people’s emotional reactions: we do not mourn the deaths of embryos; we are not shocked or outraged by the numbers of their deaths; we feel differently about them than we do about people we experience; therefore, early embryos are not human persons. There are three replies. First, to suggest that people do not mourn the loss of embryos with whom they have shared a relationship is sexist. A woman who senses life and has a miscarriage can experience terrible grief. Second, emotions respond to sensible states of affairs. We feel pity when we see or hear about pitiful things that happen to those we love and feel anger when we see people we identify with being ill-treated. If we do not identify with others, we are unmoved, even if they suffer injustice or undue harm. We do not easily identify with embryos. Normally, we do not perceive them; if we do, they do not possess a humanoid form, are not cute, have no familiar features with which to relate, with the result that an embryo ordinarily does not move one’s emotions. Thus, we should not expect emotions to respond justly to what is unfamiliar. The emotions of many Americans remained unmoved for generations by chattel slavery. Even today we read about or see images of suffering in Sudan, carnage in Iraq, or injustices in the Middle East with little or no emotional response. Third, the more common something is, the less our emotions are stirred by it, especially if there is little to be done. We do not consider the high rate of embryonic death an epidemic, because as far as we know it is not the result of a treatable disease. Moreover, the emotional markers that stir us and elicit grief are entirely absent from our relations to embryos. Generally, those relationships do not involve interaction, and feelings are stirred in proportion to the degree we interact with another; and have shared a relationship. The data of emotions in regard to embryos’ deaths therefore should be considered irrelevant to the question of their existential status.25

If it eventually becomes possible for people to watch recordings, with magnification of the early stages and time-lapse photography, of their own development from fertilization to birth, they will identify with embryos, sympathize with their needs, and be horrified at the injustices they suffer.

Argument 5: The “burning building” scenario—arguments for personhood are irrational or inconsistent

The final argument uses a fictional scenario to make its point. It argues that since most people, if faced with saving either a whole tray of embryos or a single child from a burning building, would save the child, the argument for the personhood of the embryo is unsound.26

Granting for argument’s sake that a majority would save the child, reasons consistent with the personhood of embryos can account for their preference. Choices presuppose emotional motives to generate live options. As stated above, emotions are stimulated by sensory cognitions arising from either immediate sensory information or images recalled from the memory or imagination. In a burning building, perceptions of the flames and child would make simply fleeing and striving to save the child live options, and the embryos might well not arouse any sympathy. One might argue that the burning building scenario is not making a claim about what most people would do, but rather what most people would judge they ought to do; and most people would judge they should save the child. Two reasons compatible with my thesis could account for this. First, if saving the embryos became a live option, the fact that they would suffer no pain while the child would suffer greatly might seem reason enough to prefer the child. Second, they might reasonably judge that there would be little chance that the embryos would survive from freezer to birth if hastily removed, while the child could surely be saved.

But if the scenario were changed to include certainty that some or most of the embryos would survive till birth, and that the child would not suffer from the flames, then the popular conclusion of the burning-building scenario is tendentious. Those who judge human embryos to be persons likely would save the embryos, and those who judge them to be subpersonal or who have serious doubts likely would go for the sure bet and save the child. Since many today have doubts, it is likely that the majority would still choose for the child. But this is an inadequate ground upon which to base the weighty decision that embryos are subpersonal and may be treated as objects. Since most people in our society have not been exposed to good arguments for the personhood of embryos, and since given their miniscule size and non-humanoid form most do not easily identify affectively with embryos and hence do not easily see them as like the rest of us in a fundamental way; and given that 35 years of legal abortion and 30 years of embryo manipulation have provided considerable incentives to our community not to facilitate the articulation and dissemination of good arguments humanizing the preborn, an argument that appeals to what a majority of people would do in a crisis situation to conclude that embryos are subpersonal, should not be taken as exercising much weight. It would be like arguing in Georgia in 1750 that because a majority of respectable citizens would save a white girl from a burning building rather than five black girls, therefore it is reasonable to conclude that the black girls possess an inferior moral status.

Finally, if one cannot save both the child and the embryos, one judges that it is legitimate to save at least one while tolerating the loss of the other. This judgment is very different from the judgment that it is legitimate to lethally experiment on large number of the other, which is the conclusion the burning-building scenario is meant to support. The scenario suggests that some have doubts as to whether embryos have full moral status. Fairness requires that doubts be replaced with moral certitude that embryos are manifestly not persons before we undertake deliberate acts of a lethal nature against them.

How would I want to be treated?

I have considered several dominant arguments denying the personhood of the embryo and concluded that each is unsuccessful. In defense of embryonic personhood, I have argued that the possession of radical natural capacities and not the functional ability to exercise those capacities is a more secure ground for the attribution of personhood because the latter relies on drawing lines that are unworkably arbitrary. My conclusion then is that people begin when organisms with a radical natural capacity for rationality begin. Said in another way, all organisms with a rational nature are human persons. True embryos have a rational nature; therefore embryos are human persons indicated within the boundaries of the class of others signified by the Golden Rule. It is therefore reasonable to assert, “I was an embryo,” with the “I” signifying an identity-preserving personal individual. If others had suspended that embryo’s development in liquid nitrogen, or earmarked it for destruction, or disaggregated it, they would have suspended my development, earmarked me for destruction or destroyed me. I would not want this, nor would any reasonable person.27

Given our natural proclivity for self-preference and the danger this poses for the way we treat those who are different from us and about whom we feel differently, especially those who are weaker, voiceless, and incapable of mounting any protest, it is reasonable to treat human embryos as other selves and to ask: if I were an embryo, how would I want to be treated?

U.S. law and the problem of cryo-preserved human embryos

The problem of frozen embryos began in the 1970s as fertility clinics began using cryopreservation to store untransferred embryos. Scientific interest in these embryos dramatically increased after 1998 with the first successful isolation of human embryonic stem cells by Dr. James Thomson at the University of Wisconsin. The frozen embryos quickly came to be seen as valuable scientific material.

The 2003 RAND-SART Report28 (the most reliable to date) estimated the number of frozen embryos at ART (assisted reproductive technology) clinics in the U.S. at approximately 400,000.29 It is estimated that the number has increased annually by approximately 19,000 [42]. This puts conservative estimates at around a half a million (the population of New Orleans before Hurricane Katrina). The Report states that 88.2% of the 400,000 are earmarked for future “family building.” Most couples, however, after achieving a successful pregnancy through ART, lose interest in their frozen embryos and a further pregnancy. This is due in part to the high incidence of multiple-infant births when using ART (29% as opposed to less than 2% of other pregnancies). The Report states that the remaining 12% are designated for other purposes: 2.8% for destructive research, 2.2% for outright destruction, and 4.5% are being held for miscellaneous reasons, such as the death or divorce of the custodians or because the embryos have been abandoned. Only 2.3% (or about 9,000) are earmarked for “donation” and adoption.30 It is reasonable to assume that without legislation promoting their welfare, most frozen embryos will never be implanted.

The questions of what should and what can be done legislatively are not coextensive. I have argued that the principal arguments denying human embryos’ personhood are unsuccessful. If my arguments are sound, the law should recognize human embryos as persons and protect their basic human rights. Given the present attitudes of legislators, the scientific community, and the public towards human embryos, it is unrealistic to expect such legislation. U.S. laws presently say little about the embryos and almost none affirm their humanity. Embryos have been treated like property by the courts. Legislation protecting embryos would be opposed by the fertility, abortion, and biotech industries. The Center for Disease Control (CDC) estimated that the average cost per ART cycle in 2002 was $12,400 and reported that 134,260 cycles were performed on U.S. patients in 2005.31 Thus, about 1.7 billion dollars were spent for ART alone in 2005.

Currently no federal laws govern how embryos are treated, and attempts to enact federal legislation regulating their treatment at fertility clinics have been unsuccessful.32 The only federal restrictions are on the extent to which the federal government supports the creation and destruction of human embryos. The Dickey-Wicker Amendment (1996) prohibits the use of federal funds to support research “in which human embryos are created, destroyed, discarded, or knowingly be subjected to risk of injury or death greater than that allowed for research on fetuses in utero.”33

State laws, however, vary. Four states regulate the “donation” of frozen embryos (CA, OH, OK, TX) and two regulate their adoption (FL, LA).34 Of the six, however, only Louisiana provides for protections for the embryos. The others provide only for those who intend to “donate” or adopt them. The legal reason for this is plain. Louisiana alone considers the embryo in a laboratory a juridical person under the law. The Louisiana law states that an ART/IVF created human embryo before the time of implantation “is a biological human being” and therefore “exists as a juridical person” [44].35 The law states embryos are neither the property of the physician nor of the fertility clinic in which they reside, but separate entities in possession of rights. Their creation for any purpose other than family building is prohibited. And the law mandates that all unused frozen embryos be “donated” for purposes of implantation, not destruction. Louisiana law, however, is an exception.36 Most states have no legal definition of what an embryo is, and many simply rely on the U.S. Supreme Court’s assertion in Roe v. Wade that “the unborn have never been recognized in the law as persons in the whole sense” [46, Sect. 9]. Although not strictly relevant to embryos, that holding postulated that human individuals become persons only when they are born.37

Courts have treated frozen embryos either as property or even as inferior to property. The Tennessee case, Davis v Davis (1992), treated them as inferior [48].38 A divorcing couple asked the court to rule on the fate of their frozen embryos. The husband wanted them destroyed (“wishing to avoid procreation”) while the wife wanted them implanted in her or “donated” to another couple. The trial judge, on the expert testimony of the famous French geneticist Jerome Lejeune, ruled that because human life begins at conception, the embryos should be available for implantation. The decision was reversed by the Tennessee Court of Appeals and the reversal upheld upon appeal to the Tennessee Supreme Court, which rejected the claim that embryos are human life, stating rather they merely have the “potential” for life. They “are not, strictly speaking, either ‘persons’ or ‘property,’ but occupy an interim category that entitles them to special respect because of their potential for human life” [48, p. 5].

But the court showed the embryos no respect, special or otherwise. Rather, it treated them inferior to ordinary property by granting the possession entitlement to the party wishing to destroy them. “Special respect” apparently meant only that disputes over embryos would not be resolved according to a strict contractual approach, but rather according to the principle that “the party wishing to avoid procreation should prevail” [48, p. 5]. The U.S. Supreme Court declined to hear an appeal.

In Kass v. Kass (1998) (another divorce dispute over the disposition of frozen embryos), the New York State Supreme Court adopted a straightforward contractual approach, stating that agreements between progenitors “should generally be presumed valid and binding, and enforced in any dispute between them” [48, p. 6]. The court expressly prescinded from the question of whether (what it obscurely called) “pre-zygotes” are due “special respect,” as Davis asserted. But it did deny (relying on Roe v. Wade) that embryos are persons [48, p. 6]. It too ruled in favor of the spouse wishing to avoid pregnancy. So did the court in A.Z. v. B.Z. (Mass. 2000), though this time, by deciding not to enforce a pre-written agreement between the spouses that upon separation their frozen embryos would go to the wife [48]. In each case, the court effectively ruled that the embryos in question should be destroyed, thus treating them with less regard than property.39

The refusal to protect human embryos by our courts is almost universal. In York v. Jones (1989) frozen embryos were treated as pieces of disputed property—“not entitled to protections granted to persons” or “special treatment because of their potential of human life” [48, p. 13]. When it was argued that the “best interests of the child” standard should be applied to frozen embryos under dispute, the Iowa Supreme Court in In re Marriage of Witten (2003) dismissively ruled that State interests extend only to the welfare of “children who have been born, not fertilized eggs that have not even resulted in pregnancy” [48, p. 12]. And the court in Bohn v. Ann Arbor Reproductive Medicine Assoc. (1999), in response to the plaintiff’s argument that custody of embryos be granted under the Michigan Child Custody Act, said “we decline to stretch the definition of ‘child’ to the degree suggested by the plaintiff and suggest that such an extension would require legislative, rather than judicial, action” [48, p. 14]. When cases have been brought under the presumption of the humanity of the embryo, most courts have refused to hear them.40 When the presumption has been accepted, the decision has been severely criticized.41

The embryo in European law

We might be able to learn something from the legal status of the embryo in several European countries. Germany’s Embryo Protection Act of 1990, for example, stipulates that IVF patients can create no more than three embryos per IVF cycle, that all three must be transferred into the patient’s uterus, and that freezing and discarding embryos are prohibited. The act stipulates that the use of an embryo “for any other purpose not serving its preservation” is punishable with imprisonment.42 Italy’s tough 2004 law on assisted reproduction also stipulates that no more than three oocytes can be fertilized at one time and that all resulting embryos must be transferred to the patient’s uterus. The law prohibits the cryopreservation of embryos, oocyte donation (and sperm donation), and embryo biopsy for preimplantation genetic diagnosis [52].

The 1994 French Bioethic Law prohibits the creation of human embryos for purposes of research or to harvest stem cells.43 It does not restrict the number of embryos permissible to create in an IVF cycle, nor does it prohibit embryo freezing. But it limits those for whom it is permitted to create embryos by a “best interest of the child” standard. Those served must be living, heterosexual couples of reproductive age, and either married or able to prove cohabitation for 2 years [54, p. 1843]. The law prohibits “any experimentation on embryos” except experiments that cannot harm the embryos.44

Even Switzerland, with its permissive laws on research on surplus embryos, protects the interests of human embryos at both the Constitutional and legislative levels. Article 119 of its Federal Constitution prohibits creating human embryos to conduct research. It permits creating embryos for IVF, but states that no more may be created than are capable of being “immediately implanted” into a woman’s body. The federal constitution also prohibits cloning in all forms and interference with the genetic material of both gametes and embryos.45 In addition, Switzerland has the Embryonic Research Act (2004), which prohibits the creation of human embryos for research purposes, the creation of human clones and the creation or use of embryonic stem cells from clones.46 Article 1 states that the Act aims to “to prevent all abusive uses of excess embryos and of embryonic stem cells and to protect human dignity” [56, p. 7481].47

Moral norms for research on human subjects

Part I of this essay showed that arguments against the personhood of human embryos are not convincing and that arguments supporting personhood are. Thus, we should treat embryos as human subjects. The still influential Belmont Report, prepared in 1979 by the United States Department of Health, Education, and Welfare (now Department ofHealth and Human Services) sets forth three moral principles governing actions on human subjects in research: respect for persons, beneficence, and justice [57].48 Each contains something relevant for the treatment of human embryos.

Respect for persons implies an acknowledgement that persons are autonomous agents capable of self-determination. But since some people have not yet matured to the point of being able to exercise self-determination, special care is due while they mature. If they are very vulnerable, they may be excluded altogether from research that exposes them to harm. Beneficence (embodying the familiar “do no harm” principle) not only rules out intentional harm to subjects, but also subjecting patients to risks for reasons unrelated to their own good. This especially applies to immature subjects (the report mentions “children”). Finally, justice requires that the benefits and burdens of research be distributed fairly. The report especially stressed protecting the interests of subjects who, because of their position in society, are easily exploited. Justice demands that research should not be carried out on persons from groups who are unlikely to benefit from the applications of the research. The report scathingly criticizes research in the past that exploited unwilling subjects and exposed them to serious harm.

Applying these principles to frozen embryos, they are a particularly vulnerable group, unable to defend their interests and easily exploited because of their tenuous social position as “left over” or “spare.” So, justice requires that research impose no burden on them without a proportionate benefit to them. The principle of beneficence rules out exploiting them for the sake of others and requires that any action directed towards them have their own interests in view. Finally, the principle of autonomy requires that we show special respect to embryos (as immature human beings), protecting them while they mature and not subjecting them to unreasonable risk of harm.

Proposed federal legislative reforms aimed at protecting embryos49

Following the example of embryo-protective laws in Louisiana, Europe and elsewhere, I propose the following federal legislative reforms for regulating the treatment of ex utero human embryos.50
  1. 1.

    The fact that new human individuals normally begin at fertilization was scientifically established before the movement to legalize abortion began after World War I, and this fact ought to be acknowledged as a basis for all legislation bearing on embryos and unborn babies.

     
  2. 2.

    An ex utero human embryo should be recognized as a juridical person entitled to pursue development to term in the uterus of his or her biological mother or willing adoptive mother.51

     
  3. 3.

    Doing anything to a human embryo that adversely affects his or her survival and welfare would be prohibited. This includes intentionally destroying human embryos, and submitting them to destructive research.

     
  4. 4.

    Creating human embryos for any purpose other than to implant them in the uteruses of their biological mothers would be prohibited.

     
  5. 5.

    The cryopreservation of human embryos would be permissible only when necessary as an emergency measure for preserving their lives until they can be transferred to their mother’s or another woman’s uterus.

     
  6. 6.

    No more than three human embryos would be permitted to be created per ART/IVF cycle; and all three would have to be transferred into the uterus of their biological mothers. Gamete donation would be prohibited under a “best interests of the child” restriction.52

     
  7. 7.

    An ex utero human embryo is a subject of rights and not the property of anyone. If human embryo progenitors fail to act in accord with the best interests of the embryo, abandon their embryos or renounce parental rights, the physician should be deemed to be the embryo’s guardian until a suitable adoptive arrangement and implantation can be done.

     
  8. 8.

    Parents of frozen human embryos would be given 12–24 months to have their embryos transferred into a female parent’s uterus for purposes of gestation. Any embryo still frozen after this time would be made available for government subsidized transferal into the uteruses of properly qualified women, and social adoption by properly qualified married couples. No embryos would be made available for destructive research.

     
  9. 9.

    Previously cryo-preserved human embryos would be thawed and allowed to die after 5 years if and only if no suitable woman could be found willing to accept implantation of the human embryo.

     

The interests of frozen embryos prevail

Although proposal eight would limit the rights of some parents to their embryos, it would not be unjust. If it is true that human embryos are persons, it is entirely reasonable to present their parents with the alternatives of caring properly for these children or losing custody of them. Moreover, there are several reasons for concluding that freezing human beings is unjust. First, suspending another’s natural development for reasons unrelated to his or her developmental wellbeing is surely a violation of a human right (call it the right to developmental continuity and integrity). No reasonable person would want to be arbitrarily and indefinitely consigned to a freezer if a better alternative was available. Moreover, subjecting another to a life threatening condition—namely, cryogenic suspension—for reasons unrelated to his or her welfare is a violation of the principle of benevolence. Finally, making human beings as products in a laboratory to satisfy the desires of others, and then relegating some to a dangerous form of cold storage, either because they are temporarily or permanently unwanted, is unjust to them. It relegates them to the status of a mere product of utility, and not as ends in themselves as all human beings deserve. No reasonable person would want to come to be as a product rather than as a person loved for his or her own sake. The community therefore has a moral interest in rectifying the wrong currently done to frozen embryos.

But making available currently frozen embryos for heterologous uterine transfer and social adoption would not only be in the interests of the embryos. It would also serve the legitimate interests of couples wishing to have children. There are an estimated 10 million couples suffering from infertility in the U.S. Between 11 and 25% of them consider adoption [40, p. 129]. The National Adoption Information Clearinghouse reports that approximately 200,000 couples seek to adopt each year. Facilitating the adoption of as many of the thousands of currently frozen embryos as possible would unite many tiny children who need parental love with couples prepared to give it.

Conclusion

The status quo has not worked. It has led to more than five hundred thousand human embryos absurdly existing in a frozen state, their future uncertain, their fate directed by federal laws indifferent to whether they live or die. At the state level, initiatives aimed at facilitating their welfare are being taken up. At the federal level the conversation is mute. Although readers may reject my philosophical conclusion about the personal status of embryos, I suspect that very few think the present state of affairs is ideal. A practical conversation about how best to correct it would be very worthwhile.

I set forth this proposal for reform to stimulate conversation.

Footnotes
1

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.

 
2

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].

 
3

Michael Tooley works from a similar definition (to a different conclusion) [3, p. 167].

 
4

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].

 
5

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].

 
6

William Hurlbut, M.D., argues that even before the zygote divides the “anterior-posterior axis appears to be already specified” [11].

 
7

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].

 
8

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].

 
9

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.

 
10

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].

 
11

I use the term “true embryo” to distinguish it from what Austriaco terms “pseudo embryos,” namely hydatiform moles, teratomas, and parthenotes [20].

 
12

I follow here Grisez’s formulation [6, p. 19].

 
13

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].

 
14

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].

 
15

Humans develop in different ways (biologically, psychologically, morally, spiritually, etc.). I am referring here to organismic development.

 
16

Shaffer’s Developmental Psychology defines development as “systematic continuities and changes in the individual that occur between conception (when the father’s sperm penetrates the mother’s ovum, creating a new organism) and death” [23, p. 2]; see also [24, p. 15].

 
17

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.

 
18

The working group was writing on the problem of euthanasia.

 
19

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.

 
20

See in particular Chap. 11 on “fallacies” [28].

 
21

Logicians refer to a fallacy called an argument from the “heap.” It argues that we cannot produce a heap of sand by adding a single grain; in other words, since a single grain does not make a heap (1), and the addition of a single grain (1+1) does not make a heap, and the addition of another single grain (2+1) does not make a heap, therefore, any number of grains of sand do not make a heap. The fallacy exists in drawing an absolute conclusion from a vague premise; see [28].

 
22

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].

 
23

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].

 
24

“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].

 
25

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].

 
26

Annas uses the scenario as far back as 1989; see [33, pp. 20–22 at 22]. It is also found in various forms in [34, 38, 39], cf. [40, p. 47]; George and Tollefsen criticize the argument in [9, pp. 138–142].

 
27

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?

 
28

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.

 
29

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].

 
30

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.

 
31

Data was provided by 422 clinics. Available at http://www.cdc.gov/ART/ART2005/index.htm.

 
32

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.

 
33

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.

 
34

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].

 
35

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.

 
36

New Mexico also requires mandatory “donation” of unused embryos for purposes of implantation. See [45, p. 154, note 15].

 
37

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]).

 
38

The following quotes from court cases are taken from [48].

 
39

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].

 
40

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.

 
41

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.

 
42

Summaries of laws governing the treatment of human embryos for 16 countries are provided at [51].

 
43

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].

 
44

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].

 
45

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].

 
46

The Act was approved by referendum in November 2004.

 
47

“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].

 
48

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].

 
49

Consistent with my conclusion that embryos are persons, I do not regard IVF as morally acceptable because it entails bringing persons into existence as products. My proposals are assuming it is likely to remain legal and therefore aim to limit the harm done by its being legal by formulating just legal norms for the treatment of the human individuals who will come to be in that way.

 
50

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].

 
51

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.

 
52

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].

 

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.

Copyright information

© Springer Science+Business Media B.V. 2009