What’s in a Name? Consider “Embryos”
posted by Naomi Cahn
Dan first asked me to blog a few months ago, around the time my book, Test Tube Families: Why the Fertility Market Needs Legal Regulation, was hitting the market. Since then, we’ve had Nadya Suleman’s octuplets, President Obama’s lifting of the federal stem cell research ban (although this may only apply to embryos resulting from fertility efforts), and proposed new legislation in Georgia that would allow for embryos to be “adopted.” These events in reproductive technology are neither as newsworthy nor as profoundly disturbing as the torture memos or bailing out Wall Street — or, potentially, as swine flu. They are, nonetheless, critical to the cultural conflict over abortion, family formation, and gender roles.
Consider the proposed Georgia law, and almost copycat-like, legislation in Tennesse. The “Option of Adoption Act” is a Georgia bill that is now sitting on the desk of Ga.. Governor Sonny Perdue. This is the same Republican governor who filed his own brief in Northwest Austin Municipal Utility District v. Holder (the Voting Rights Case that the Supreme Court heard last week), arguing – among other things — that electing a black president indicates no further need for the type of scrutiny Georgia receives under Section 5; the Georgia attorney general had, apparently, refused to file such a brief. Anyway, the Option of Adoption Act, which was introduced in the Georgia legislature by an anti-abortion state representative, sets out methods through which people who create an embryo (when someone undergoes a cycle of in vitro fertilization, there are often embryos left over that ) can donate any leftovers to someone else. There may be up to half a million frozen embryos in the United States, although many of them are incapable of becoming viable fetuses. In Georgia, if the legislation becomes law, the recipients of any embryo transfer can then choose to petition a court for recognition that they are the legal parents of any child born to them.
.One of the bill’s advocates, Daniel Becker, the President of Georgia Right to Life, trumpeted that, “’This bill is monumental in that it establishes the adoption of embryos as children for adoption purposes.’” Indeed, there have even been claims that an embryo exchange should be the basis for eligibility under the federal adoption tax credit. As Sarah Lawsky and I painstaking show in Embryo Exchanges and Adoption Tax Credits, use of someone else’s embryo is not an adoption. Calling embryos “children” is problematic for a number of reasons.
First, and most clearly, it is part of a right to life agenda designed, ultimately, to overturn Roe. In the short term, this is an effort to continue to control the rhetoric around abortion and to continue to make inroads through the political process on women’s right to choose. And, it is factually inaccurate. Not only is the terminology politically motivated, but also the legal procedures for donating an embryo are quite different from the legal procedures for an adoption.
Second, labeling an embryo a “child” may lead to questions about how to think about egg and sperm that are “donated” by one person to another. (Here again the language is tricky: egg and sperm are usually not donated but are — as many other wonderful colleagues have noted — sold. Stay tuned for a potential blog post about this.) If there are to be questions raised about the fertility industry, however, the questions should relate to better regulation without allowing right to life advocates to take over the discourse. For more on this, see Jennifer Collins’s recent post.
Finally, there are numerous options for thinking about what to do about the problem of leftover embryos. Many people don’t like the idea that their embryos will become someone else’s children, or they want to keep these embryos in storage for future family-building; others want to dispose of them entirely; some want to donate them for research; and then there’s the group who wants to help others family-build. If we think of embryos as “children,” however, we may limit people’s choices on what to do with their leftover embryos, and we may also get close, again, to shutting down federal funding for stem cell research. . No good outcomes here – unless we think of embryos as embryos.
May 4, 2009 at 7:00 am
Posted in: Bioethics, Family Law, Feminism and Gender
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Responses (8)
Chris - May 4, 2009 at 11:42 am
I think you need more argument here–what exactly is factually inaccurate about calling a human embryo a child? Also, I think the abortion-politics issue cuts both ways–isn’t your resistance to the label part of a right-to-abortion agenda designed, ultimately, to maintain Roe?
Moz - May 4, 2009 at 6:30 pm
Alternatively this could be a step on the way to letting me donate unwanted children for medical research. If people like Chris above are happy to think of embryos as children and acknowledge that a third of them are spontaneously abort we’re well on the way to accepting infanticide (after all, it’s a natural process… many species do it).
Joel - May 4, 2009 at 7:07 pm
I agree with Chris. You say, “If we think of embryos as “children,” however, we may limit people’s choices on what to do with their leftover embryos,” but you do not dwell much on why it would be an inaccurate designation. Worrying about the political corner we might paint ourselves into reeks of the political agenda you decry in the post, just for the other side.
Nate Oman - May 4, 2009 at 10:16 pm
I agree with you that as an analytic matter there are problems with thinking of embryos as children. On the other hand, not being a fan of Roe on either constitutional or moral grounds, I am always rather warry of the appeal to the boggy man of pro-life rhetoric. I can understand rejecting the rhetoric if it is analytically unhelpful. On the other hand, to reject it as political based on some neutral appeal to the value of maintaining Roe strikes me as unpersuasive. Such a move is not politically neutral, but rests on a controversial assumption as to the value and legitimacy of enshrining a liberal abortion regime in the constitution and society.
Chris - May 5, 2009 at 8:29 am
Moz–Absent implausible normative assumptions about accepting whatever is “natural,” I don’t think your conclusion follows. Sadly, lots of children die. That doesn’t make them not children.
Moz - May 5, 2009 at 6:37 pm
Chris, no more implausible than pretending that an embryo is a child. If you said a late-stage fetus should have significant moral rights in common with a child on the basis that it is similar in other ways, then yes, I think there’s good grounds for that argument. But saying that a few cells are a person… not so much.
What makes the embryo a person to you? The way it is completely dependent on you for everything? In which case, why aren’t the lice that live in your eyebrows people? The way it’s genetically human? Like your skin is. The way it might one day be a person? In which case, why draw the line at an embryo? Why not any human egg?
My point is that embryos are less important to most people than people are, and so there’s a real risk that your claims will lower the perceived value of people rather than lifting the value of embryos. As has happened with sexual assault, now that looking at someone funny is “sexual assault”.
Chris - May 5, 2009 at 6:59 pm
“What makes the embryo a person to you? … The way it might one day be a person? In which case, why draw the line at an embryo? Why not any human egg?”
Since you asked, I’d be inclined toward this sort of criterion for personhood–being the same organism that is later an adult. But the ovum doesn’t become an adult–it fuses with another separate organism, producing a new entity.
I’m not sure what criterion you’d want to use, though. The most common criterion I’ve seen deployed against fetal personhood–Tooley and Warren’s argument that the fetus doesn’t have higher mental function–can’t deal well with the reversibly-comatose-people counterexample. What’s your ground for saying the embryo isn’t a person? Simply that lots of embryos die? Adults die too.
Joel - May 8, 2009 at 2:43 pm
Isn’t it equally arbitrary to use viability, quickening, or birth as the line for when a baby-to-be becomes a baby?
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