The Story: A new Arizona law requires courts to give embryos created by IVF to the spouse who plans to use them to have a baby when a couple decides to have a divorce.
The Background: The Department of Health and Human Services says there are more than 600,000 human embryos being kept cryogenically frozen in the United States. Most of them will die before they ever have a chance to be born, because the parents who created them choose not to let them continue their development. In some cases, though, one of the parents does want to allow the child to be born. If the other parent disagrees, courts often rule in favor of the person who does not want the child.
The new Arizona law—the first of its kind in the United States— requires courts to award the embryos to the spouse who wants them for the purpose of having children. However, to protect the interest of the spouse who does not want the embryos, the bill also removes any right, obligation, or interest between the spouse and the child.
The law also states that if only one of these spouses is biologically related to the embryos, the court must award the embryos to the spouse who is biologically related. If both spouses are biologically related to the embryos and both want the embryos for the purpose of having children, the court must determine which parent provides the best chance for the embryos to develop to birth.
What It Means: When Roe v. Wade appealed to the 14th amendment’s “due process” clause, it decreed that the state cannot deprive a person of life, liberty, or property without due process. Since the fetus is a separate living entity from the mother (if it weren’t, then ending the life of the fetus would end the mother’s as well) there is no deprivation of life. In a similar manner the creation of the “right to privacy” cannot apply to the term liberty either, otherwise all laws against prostitution, drug use, suicide, and so on would have been struck down as well. The only area that the clause could have applied to within the context of abortion was to property.
That is why since since Roe unborn life has been treated as a form of property in which the woman has certain specific and limited rights. The state can only interfere with these rights when they have a compelling interest, and then only after the first trimester. Until that time the woman has the right to “dispose of her property” in almost any manner she chooses.
Since the Supreme Court’s ruling in 1973, though, medical technology has advanced to the point where we now have a detailed and fairly comprehensive understanding of embryonic life. Since it has become scientifically untenable to deny the embryo is a human being, the fall-back argument is that the embryo is a “non-person human.” Because too many people (including far too many Christians) deny the personhood of early unborn life, humans in the embryonic and fetal stages are legally treated as personal property.
Sherry F. Colb, a law professor at Cornell University, argued in 2005 that prior to a baby’s birth, property law takes sufficient account of the various interests at stake in abortion and fertility medicine:
Two contexts in which the distinction between a “person” and a non-person can nonetheless matter a great deal are abortion and fertility medicine.
In the case of abortion, the person who “owns” the putative property is the very person who seeks to destroy it (presumably with the help of a medical professional). Therefore, under ordinary circumstances, there will be no one to bring an action for violation of a property right.
In the case of fertility medicine too, the people who decide the “fate” of the property are typically the owners (the people from whom the eggs and sperm are taken or their designated beneficiaries). They can implant as many embryos as they wish, on the advice of a doctor, and they can freeze the ones they do not implant for as long as they like. Again, if the embryos are destroyed, their owners will have ordered that destruction and thus cannot complain.
That is one difference between persons and property: you can give up your right to sustain a piece of your property, but you cannot do the same on behalf of another person.
To the extent that you had wanted your property to continue to “live,” it would seem fair to force another to compensate you for destroying it. That is perhaps why everyone can agree that attacking a pregnant woman and killing her fetus in the process is a heinous act—whether or not the fetus is a person—and calls for sufficient condemnation and compensation to take into account the death of the woman as well as the loss of the pregnancy that she had hoped to continue.
That is also why plaintiffs Miller and Parrish could recover for the loss of their embryos without those embryos having to qualify as legal persons. [emphasis added]
Prior to abolition, slavery in the United States was often referred to as the “peculiar institution.” The phrase was not used by Southerners because they chattel slavery to be unusual but because the English word peculiar is derived from the Latin peculiaris—personal property. While the concept of human beings as personal property may seem anachronistic, that is the semantic and conceptual shift required to justify denying the natural right to dignity and life of the unborn.
It took almost a hundred years from the birth of our nation until black Americans were recognized as fully human, rather than as mere property. How long will it take before our country acknowledges the same dignity and personhood of the unborn? How long until humans in the earliest states of life are recognized as belonging to God and not to the new peculiar institution?
Arizona’s new “Parental Right to Embryo” law is a step in the right direction, treating the embryos more like children in a custody battle rather than a property to be divided like material assets. But the advance we need most is for all Americans to acknowledge the utter horror of intentionally creating children they have no intention of allowing to be born. Storing spare embryos until the die is morally equivalent to abortion.
Christians should give grace and forgiveness to the people (including themselves) who created “spare embryos” because they were unaware they were creating children that would be abandoned to die. God can forgive this sinful disregard for life, just as he can for abortion. But the Lord also expects repentance. Now that we know the truth about embryonic life we no longer have any excuses for continuing this satanic practice of child abandonment. We must treat humans at the earliest stages of life as the children they are—to be loved by us as they are by God—rather than as property to be discarded at our whim.
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