Persons, Not Property

Last month I noted the Alabama Supreme Court ruling in a case about the destruction of embryos. The embryos had been created by a fertility clinic. Some were implanted in women who had contracted with the IVF clinic. Others were frozen and stored for future use. In December 2020 a patient at the hospital where the clinic is located gained access to the storage unit, put his hand in, and grabbed some embryos, which were thereby destroyed. Three couples whose embryos were involved filed a civil lawsuit to collect damages, arguing that the IVF clinic had been negligent in failing to protect the stored embryos. They made their argument under Alabama’s Wrongful Death of a Minor Act, which Alabama’s high court determined to apply in this case.

Uproar ensued. Progressives pounced on the ruling and broadcasted to the public that it represented an assault on the practice of IVF. Careful legal scholars have pointed out that the ruling is narrow. It concerns how to characterize the interests of couples who have engaged the services of fertility clinics. Are we to say that the embryos are the property of the couple? At first glance, pro-abortion zealots would seem happy to answer in the affirmative. But perhaps not, for such a judgment brings back unhappy memories of a time in American history when human beings of a certain race were treated as property.

Consider what the Alabama court had to adjudicate. The couples who litigated had had successful pregnancies by means of IVF. But imagine that one of the women had been hit by a drunk driver during her first month of pregnancy and suffered an injury that caused her to lose her child. She would be able to litigate for damages under the Wrongful Death of a Minor Act. Are we to suppose, therefore, that the frozen embryos awaiting implantation are ontologically different from the implanted embryos, so much so that the embryos are “property” until such time as an adult decides to “use” him or her?

Although I regard the practice of IVF as wrong, I have sympathy for those who employ modern science in this way. The burden of infertility can be great. And I have pity, because men and women who engage in the artificial production of embryos are flirting with morally grievous matters. As the Alabama case brought to the fore, either the “products” of IVF are property or they are persons. To call the surplus embryos “property” indicates that IVF creates human life so as to manipulate and use it to suit the desires of adults. To allow that frozen embryos are persons forces us to confront the reality of IVF, which some experts say currently has one million persons on ice in the United States.

At the test of the first atomic bomb, J. Robert Oppenheimer recalled a line from the Bhagavad Gita: “Now I am become Death, the Destroyer of Worlds.” We are on the cusp of a very different but equally daunting scientific revolution in reproductive technology. IVF and its Faustian manipulation of life are but the first act. Where is the Union of Concerned Scientists when we need them?