The Question of Embryos and Legal Status

What constitutes 'a person' under the law? At first glance, this seems such a simple question; however, the more I think about this, and the more I investigate, I am realizing that there is not a clear answer. There clearly has not been a consensus amongst the legal and scientific communities.

Recently the Los Angeles Times examined the issues surrounding leftover frozen embryos. Many couples in the United States with frozen embryos leftover from fertility treatments are “finding themselves ensnared in a debate about when life begins”. These couples have three choices: discard them, donate them to research or donate them to another couple for potential pregnancy. There are initiatives in several states that seek to protect embryos. One of these initiatives defines a fertilized egg as a person in the state constitution (Colorado). Indiana lawmakers are proposing an allowance for leftover frozen embryos to be adopted for implantation by another couple. New Jersey legislators have proposed allowing unused embryos to become wards of the state, and Georgia and West Virginia are considering legislations that would grant embryos “personhood status”. This is a very slippery slope; for, if the Supreme Court allows these proposals, one would be in a position to say all abortions must stop.

Roe v. Wade is the historic Supreme Court decision overturning a Texas interpretation of abortion law and making abortion legal in the United States. The Roe v. Wade decision held that a woman, with her doctor, could choose abortion in earlier months of pregnancy without restriction based on the right to privacy. At the time of this decision, it was clear that an embryo was not a “person”, or abortion would have been “murder”; thus illegal. In Davis v. Davis the lower court found that “human embryos are not property, and human life begins at conception”. However, the Supreme Court of Tennessee overruled this by saying something quite different, that embryos occupied a special status of “quasi-property”. Most recently, the Oregon Court of Appeals has ordered six frozen embryos be destroyed after ruling they can be treated as personal property in a divorce.

So, in essence, it remains unclear in the scientific world “when life begins”, but in the “legal world” it is quite clear that embryos are not “persons under the law” (yet). In fact, at this time it appears embryos are simply “property”! Did I answer my own question? Embryos are life forms, but not persons?

Dame Warnock weighs in again

As some of you may know, the 2007 Amendments to the highly successful HFEA (Human Fertilisation and Embryology Act) of 1990 are now before Parliament for approval. The recent announcement that pluripotent stem cells could be derived from human skin cells (thus obviating the need for embryonic stem cell research) injected some side issues into the House of Lords Debate on the passage of the 2007 Amendments. On November 21, 2007, more than one member of the House of Lords voiced concerns that the 'moral status' of embryos needed to be revisited in light of the new research by Yamanaka and Thomson. See, http://www.theyworkforyou.com/lords/?id=2007-11-19a.704.4 19.

Dame Warnock, chair of the 1984 Warnock Committee of Enquiry into Human Fertilisation and Embryology which spearheaded the 1990 HFEA - perhaps fearing the injection of old arguments into the debate on the 2007 amendments - wrote a powerful essay for the November 29 issue of Nature reminding us that "there was little possibility of moral consensus" about research using live embryos when her committee recommended the 14 day rule to criminalize keeping an embryo alive in the laboratory more than 14 days after fertilization. [During her Committee's deliberations, she noted that] "the Church claimed a right to regulate science in this area, because of its superior knowledge of morality. In sharp contrast, the committee's entitlement to issue moral advice to ministers derived from its having been set up to do so and from its having a wide and non-partisan membership."

"The moral decisions that such committees have to make are essentially matters of public not private morality. We had to consider our own moral or religious scruples alongside what the consequences might be of the decisions for society as a whole. This was the reason we could not allow ourselves to be swayed by arguments derived from a particular religious dogma." "The legislation [we crafted] would govern everyone - believers and atheists - and had to take into account wider considerations such as the relief of suffering ... [Remember] that it is permissive. No one would be compelled to seek a form of infertility treatment or engage in a form of research..."

"It is essential that ignorance and prejudice should not be allowed to dictate the outcome. Everyone should be educated so as to have a broad understanding of science, and an appreciation of its potential for good. Without this, we cannot responsibly erect barriers to scientific advance." "This must be done by weighing up possible goods against possible harms. These harms do not include only the offending of religious sensibilities of a particular group."

Eulogies For Washoe and Alex -- Invitations to Enlarge Our Moral Universe

Washoe, the first chimpanzee ever taught American Sign Language, passed away on Tuesday night. An amazing creature, she was born in 1965 in West Africa, where she was captured by the Air Force. She was brought to the United States, initially for research use in the space program, but after less than a year in the program, she took up residence with two scientists, Allen and Beatrix Gardner, who raised and treated her as a deaf human child; during her lifetime, she mastered the use of more than 250 signs and taught them to other chimpanzees. The NY Times said "by age 5 she had mastered enough signs to capture the world’s attention and set off a debate over nonhuman primates’ ability to learn human language that continues to this day." She died in bed at age 42, of natural causes, surrounded by staff members and other primates who had been close to her. More details about her life and tributes can be seen at the Friends of Washoe website.

Just several weeks ago, the world also lost another star, Alex, the talking grey parrot. Alex, who served as an inspirational model for the character "Gerard" in Michael Crichton's novel Next, was able to identify 50 different objects, 7 colors, 5 shapes, quantities up to and including 6 and a zero-like concept. Below is a video interview with Dr. Irene Pepperberg, the scientist who trained and studied him for three decades. More details about Alex's life and tributes can be seen at The Alex Foundation website.





What both Washoe and Alex did for us in the field of biomedical ethics was to force us re-examine our attitudes towards our selves and towards the other inhabitants of the planet that we share. Washoe and Alex helped us recognize that the lines between 'human' and 'nonhuman' are not so brightly drawn -- that we are interconnected and interdependent and that drawing these separations is an illusion. In the words of Buddhist monk, Thich Nhat Hanh:

If you are a poet, you will see clearly that there is a cloud floating in this sheet of paper. Without a cloud, there will be no rain; without rain, the trees cannot grow, and without trees we cannot make paper. The cloud is essential for the paper to exist. If the cloud is not here, the sheet of paper cannot be here either...

If we look into this sheet of paper even more deeply, we can see the sunshine in it. If the sunshine is not there, the tree cannot grow. In fact, nothing can grow. Even we cannot grow without sunshine. And so, we know that the sunshine is also in this sheet of paper. The paper and the sunshine inter-are. And if we continue to look, we can see the logger who cut the tree and brought it to the mill to be transformed into paper. And we see the wheat. We know that the logger cannot exist without his daily bread, and therefore the wheat that became his bread is also in this sheet of paper. And the logger's father and mother are in it too...

You cannot point out one thing that is not here -- time, space, the earth, the rain, the minerals in the soil, the sunshine, the cloud, the river, the heat. Everything co-exists with this sheet of paper... As thin as this sheet of paper is, it contains everything in the universe in it.

[From The Heart of Understanding Berkeley, CA: Parallax Press, 1988, pages 3-5.]

Alex and Washoe, by virtue of who they were, extended invitations to those of us in the human sphere to enlarge our moral universes -- An invitation which many of us have gratefully accepted. May they Rest In Peace.