Bioethics

Embryos and Their “Right to Life”.

By Chris Rangel MD ⋅ February 6, 2005 ⋅  Email this post ⋅  Print this post ⋅ Post a comment

Discarded embryo = wrongful death?

The state of Illinois has declared in law that “human beings” exist from the point of conception and as such they have a “right to life”. A couple is using this law as the basis to file a wrongful death lawsuit against the Center for Human Reproduction in Chicago that accidentally disposed of nine of the couple’s embryos. A judge recently ruled that this case could continue as filed (a previous judge had thrown the case out but didn’t give sufficient reasons).

Maurice at the Bioethics Discussion Blog has expanded coverage of the issue with the language of the Illinois law in question, a very similar 1995 case from Rhode Island in which the court clearly ruled that frozen embryos were “irreplaceable” property and didn’t qualify as “victims” in a wrongful death suit, and a bizarre and somewhat sarcastic comparison in the Chicago Sun Times between this issue and 19th century attempts to deny slaves the status of “personhood”.

The problem of course is that there is no clearly defined point in human gestation where one can say, “here is where the fetus becomes a human being”. In ages past, the fetus did not attain full legal and mortal status as a person until the moment of birth (there were many practical reasons for this). In fact, the degree of difference between an early fetus and a near term one lead most early philosophers including Thomas Aquinas to believe that the fetus does not attain the status of personhood until late in gestation.

But now we have the technology to keep a fetus alive out of the uterus as early as the 25th week of gestation. This makes birth appear to be an incorrect and arbitrary point at which to define personhood but it certainly does not contradict the beliefs of St. Aquinas et al. and is consistent with most state laws that prohibit elective abortion in the third trimester. So clearly the fetus attains “personhood” well before birth but exactly where is still hotly debated.

In the last few decades a new movement has arisen who’s members believe that personhood begins at conception. This belief has little precedent simply because very little was known about the biology of conception and early gestation until the 20th century. This belief is popular with conservatives because it is simple and concrete. Life begins at conception . . period. This gets rid of all the nasty arbitrariness inherent in human gestation that would require deeper ruminations as to the definitions of “human being”.

The obvious problem with the “life beginning at conception” belief is that the concept of what I will call “actuality” (i.e. the state of development of the fetus at any point in time) is replaced with “potentiality” as the definition that they use for personhood. As such this belief dictates that we assign the same moral value to a fertilized ovum or multicellular zygote as we do to a fetus that is sufficiently developed to be able to survive independently of it’s mother.

As a result, we end up with this situation where the Illinois legislature has given full personhood status to nine microscopic embryos in a frozen vat. But clearly these embryos are not “human beings” any more than an acorn sitting on my desk is an oak tree. The moral value of these embryos emanates purely from potentiality and not actuality.

However, the concept of potentiality in ethical reasoning is entirely dependent upon the certainty with which such a potentiality would become a reality (an actuality). For a normal pregnancy the rate of spontaneous miscarriage is about 20% (the rate may actually be higher due to very early miscarriages before the women knows she is pregnant). The likelihood of successful in vitro fertilization is very low with only about 11-26% of transfer attempts resulting in a live birth. Clearly neither a fertilized embryo in vitro nor one in vivo has a 100% chance of proceeding to term and so logically we cannot assign every embryo the same moral value as that of a term infant.

This uncertainty is consistent with how our society assigns moral value with regard to potentiality vs actuality. We prosecute criminals not based on what they could have done but on what their actual crimes were. Even though up to 90% of doctors in training complete their education, we don’t start offering high paying jobs to first year medical students. Professional sports leagues don’t hire every high school athlete and we don’t treat every purchase of a lottery ticket as if that person is the actual winner. Had the certainty of development of a fertilized egg into a term fetus been a 100% certainty then this theory would have held much more weight. But few things are a certainty in life (death, taxes, etc.).

Yet somehow the belief has developed that early products of gestation have the same moral value as that of a term infant. “Pro-lifers” are very adapt at punching holes in the definition of “person” that “Pro-Choice” advocates put forth in an attempt to prove that fetuses before the third trimester are not really people. Yet I have never read an argument from a Pro-Lifer that convinces me to that the potentiality of a fertilized egg equates to the moral equivalent of a “person”.