An article in the new issue of Mother Jones says that litigation over the South Dakota abortion ban may not be the only legal threat to Roe v. Wade that's on the horizon.
Couples who go through fertility treatments currently have the final say over what happens to the embryos they create. But fertility clinics across the country have more than 400,000 abandoned embryos filling up their freezers. Some legal experts say that state legislatures are going to start passing laws that award "custody" of these embryos to the state, allowing a state agency to arrange for their implantation or disposal. And, the theory goes, this could form the basis of a legal challenge to Roe.
Traditionally, [legal expert Alta Charo] pointed out, abortion rights involves weighing the interests of the woman against those of the fetus, and up to now the woman’s interests have been considered paramount. But now the interests of the embryo, or fetus, or potential child, can be separated out. This, she said, is a watershed development.For those who want to test the core of Roe v. Wade, Charo told the fertility specialists, “you guys are the perfect opportunity to separate the question of embryos and best interests, and the woman’s right to direct her body. You take a law like Louisiana’s, saying that personhood begins at conception, and that you cannot discard embryos. Now the Supreme Court has the ability to look at the status of the embryo, not as compared with the woman’s right to control what she wants to do with her body.
Sounds kind of scary, right? But I don't think it's the serious threat that the story makes it out to be.
First of all, Charo is referring to a Louisiana law that designates embryos as "juridical persons." But, as some of my lawyerly friends tell me, that's a designation used for businesses. It doesn't mean "person" in the way abortion opponents might define it. The Louisiana statute also doesn't give embryos any particular rights (for example, it can't inherit property). And they don't have a positive right (to be born), only a negative one (not to be destroyed).
Most importantly, the Louisiana statue makes a distinction between embryos created inside the womb and those created in a petri dish. So even if more states (or Congress) pass legislation barring the disposal of embryos created through fertility treatments, those laws probably couldn't be applied to embryos created inside a woman's body. Even avowed pro-lifers make that distinction. Take it from California Rep. Dana Rohrabacher who, after undergoing IVF treatments with his wife, has carefully reconsidered his stance on when "life begins":
Now, Rohrabacher realizes, conception can take place outside the human body. That, for him, is a meaningful difference. The crux of the matter: Is the embryo in the womb, or is it in a lab? “I don’t think that the potential for human life exists in a human embryo until it’s implanted in a human body. So you are not destroying a human life by basically not using a fertilized egg. These are not potential human lives until they are implanted in a body. Left alone, they will not become a human being."
That's exactly why a law banning embryo disposal doesn't threaten Roe. Without a woman's involvement, these embryos are not viable. Viability is key to the Roe decision.
Still, it's interesting to think about what new reproductive technology means for the future of abortion rights. Also check out a related piece that examines whether fertility clinics should have the right to deny services to lesbians, older women, or single women.
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Mmmm. I'm not up on my legal-ese, but it doesn't *sound* serious. Embryoes outside a womb *might* be more "protected" since there's no woman involved, but I don't see why those protections would change things for when a woman IS involved.
I'm actually quite thrilled that the government gets to handle this mess. The "shelf life" of embryos is a bit vague and there's more being made all the time. Few people want "cast-off" embryos (they want to use their own), we can't use them for stem-cell research, we can't dispose of them, and we can't keep them indefinitely.
I propose sticking them in George Bush's freezer and telling him to deal with them.
The embryo. The mass of cells. The potential life. So what if the seed is planted or not? It’s still a seed. However, I think it’s very interesting that the article discussed the mixed emotions parents had over relinquishing their embryos. Could it be possible that people face anxiety over the issue because of the hype and negative stigma associated with the idea that this mass of cells is a baby?
There must be accountability in terms of bringing a life into this world. Living in a pro-life state I find it incredibly pathetic that we stand in the top five for child abuse, not to mention we have a serious health care crisis. So, what if you have those seven embryos implanted and can’t afford them? Is that moral?
Overall, I think it will be an interesting debate because I feel, and this may be wrong, that poor women are more at risk for abortion than wealthy women. This debate will likely effect wealthy affluent couples who can afford fertility treatments. Thus, bringing more men and women into the realization those personal decisions should be just that, personal.
This is a topic that I find hugely interesting.
I think that the strategy that they're trying to follow here is one of bridging, or equivalence. For instance, the State could argue that abandoned embryoes be treated the same as abandoned children, that is that the State should assume custody. Once the State has custody then they can make the embryos available to couples who can't afford a full IVF cycle.
Movement on this issue is likely to further split the feminist movement on the issue of reproductive rights. Already we have a major feminist blogger, Amanda Marcotte, who has declared that she is outright opposed to surrogacy.
Most interesting of all, to me that is, is what happens as research at the two ends of the gestation cycle converge? We're pushing the boundaries of viability for preemies at one end, and there is work on artificial gestational chambers on the other end, that is artifical unterii. At some point it should be possible to perform fetal transfers, and I would expect that shortly thereafter there will be a test case mounted which asks a court to compel a women who is seeking to abort a fetus that she simply have the fetus extracted rather than extincted, and thereafter she be ordered to be financially responsbile via child support as her partner in conception raises the child.
Technology is going to make fertility law very interesting.
If the State decides abandoned embryos are on a par with abandoned children and should be treated as such, wouldn't that also suggest that the parents who abandoned said embryos are guilty of, and could be charged with, criminal abandonment, negligence, child endangerment, etc.?
Uhoh...
Traditionally, [legal expert Alta Charo] pointed out, abortion rights involves weighing the interests of the woman against those of the fetus, and up to now the woman’s interests have been considered paramount. But now the interests of the embryo, or fetus, or potential child, can be separated out . . .
Now the Supreme Court has the ability to look at the status of the embryo, not as compared with the woman’s right to control what she wants to do with her body.
Said ability is due to the embryo's location, outside the woman's body.
What are they trying to do here, anyway? Say every embryo has the right to life? Then the equal protection clause will come into play between embryos inside a woman and embryos left over from fertility treatments. That means that whatever's acceptable treatment of one has to be acceptable treatment for the other, and what one is entitled to, the other is as well. If freezing is acceptable for fertility-treatment embryos, why should naturally-conceived embryos be entitled to more? And if naturally-conceived embryos are entitled to a woman, why should fertility-treatment embryos not be? But then how do they get women for all of them? And does the failure rate of artificially implanting them make doing so a violation of their right to life by putting them in danger? And if freezing embryos is acceptable, there would be no problem in a woman having the embryo removed: the state is immediately entitled to place it in protective custody in a freezer somewhere.
*mind boggles*
Technology is going to make fertility law very interesting.
"Interesting" in the sense of the Chinese curse. Fertility is just the near end of the pointy stick; we'll end up having to throw out and rebuild the entire paradigm of human gender and reproduction before we're done.