When pressed, just about every court that’s been asked to decide the legal status of human embryos has settled on the notion that they are property, not persons. This development represents a growing consensus among courts and legal commentators today. However grim, it may still present a silver lining. It may, in fact, force our courts—including our highest one—to grapple with the constitutional status of the unborn.
For courts to enforce IVF, surrogacy, and embryo-related agreements, they first must find that those among the contracting parties have some ownership interest in the embryo. Courts, in other words, must treat the subject of these contracts—the embryos—like property. Or else, there could be no valid, enforceable agreement to begin with. (Not to mention, people can’t “own” other people—not without flagrantly offending the Reconstruction-Era Amendments.)
For that reason, whenever they’ve had to adjudicate the legal status of human embryos—such as when divorcing couples can’t agree on who gets to keep leftover cryogenically preserved embryos—courts have almost unanimously ruled out personhood and treated embryos like property. This may be in order to make way for IVF and surrogacy-related arrangements, which have become increasingly popular in recent years, or to avoid questions about “personhood,” an issue for which lower courts have received virtually no guidance from the Supreme Court.
Whatever the reasons for this trend may be, the reality is it isn’t slowing down. In fact, even self-described “pro-life” senators are now pushing to make IVF access national policy, which (whether intended or not) would effectively codify the embryos-as-property consensus building among state courts into federal law. President Donald Trump and running-mate JD Vance seem poised to back such a move if elected, too.
On many levels, treating embryos as mere property represents a turn in the wrong direction. But it doesn’t come without some trade-offs, including ones that could pose serious implications for abortion rights. For if embryos are to be viewed as legal property, then all the rights that attach to “property” under our constitutional and inherited common-law tradition must come along with it—the guarantee of “due process” being chief among them.
The promise of “due process” is the only one that comes up twice in our Constitution: once in the Fifth Amendment and again in the Fourteenth. And even before the founders penned the Constitution, notions about due process had long since been calcified into our common-law tradition. The principle itself goes all the way back to the Magna Carta—after King John of England promised his nobles in 1215 that, from then on, “No free man shall be . . . stripped of his rights or possessions . . . except by the lawful judgment of his equals or by the law of the land.” Due process, put simply, is a bedrock civil right.
Thus if embryos are to be treated like property, then all the due-process-related rights that attach to “property” under our constitutional and inherited common law must follow with it. This would mean, taking the embryo-as-property consensus to its logical conclusion, that any father facing a state-sanctioned abortion would have to be given full, fair process before his embryo is destroyed, along with an opportunity to seek damages from those who destroyed his “property” against his wishes: rights guaranteed in just about any other context.
Courts haven’t had to grapple with this implication—yet. But as it stands, they’ve seemed to back themselves into a corner if it were to ever come up. Because if embryos are not property, then the only option left is that they’re persons. Ones for whom the “right to life would then be guaranteed specifically by the [Fourteenth] Amendment,” as the Roe Court itself put it.
Anthony Sirven is an attorney who lives in Florida. He has written for the Harvard Journal of Law & Public Policy and Florida Law Review. The views expressed in this essay are his own, and do not reflect those of his law firm or any of their clients.
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Image by Karen Neoh, from Flickr, licensed via Creative Commons. Image cropped.
