In the beginning, there was a time when doctors treated pregnant women by listening to them tell of their symptoms. There were no visuals, no color glossies, no T-shirts with the sonogram emblazoned. There was relative quiet in the womb, which took quiet to attend to. It required listening to the woman say, “This is what it feels like.” It required a palpating of the body, a laying on of hands. Midwives and doctors used touch, eyes, ears, measuring from the outside to get a sense of what was within–sounds, motions, clues. It was the mother-to-be whose health was indicative of the condition of the embryo or fetus. Whether life was deemed to begin at conception or whether with quickening, the interdependence of the womb and the woman was a given. I’m certainly not advocating that we turn back the clock with regard to obstetric medicine, but it is arresting to recall that interconnectedness in a time when “life” has become increasingly divorced from traditional contours of the human body. We live in a time when embryos and fetuses are gaining legal rights to sue, are attaining the status of persons, are being enshrined in a molecularly sized iconography of innocents to be saved. With technology, we can make visual what no generation has been privy to before. Like satellites homing in on a secret bunker from space, we have the spyware to case the joint–the interior of the uterus, the cells, even mitochondria, and now DNA.
With all that comes interpretation, and politics, and ideology. And lo, the birth of “the unborn.” The magnified fetus becomes an external, a separate entity. Women are no longer imbued with the halo-illuminated metaphors of ripeness and enfolding that underscore so many of our religious notions about women round with child. At least or perhaps especially in the United States, we find ourselves tangled in new definitions of separation and individuation. There has been a restructuring, of our rhetoric as well as of certain religious ideologies, that expressly pits a woman’s body against her fetus. There is, these days, a tendency to conceive of the fetus as an entire person, and a litigious little person at that, with a warrior attitude and a long list of complaints that can be asserted against the madonna in question. We’ve all read about negligence actions, criminal cases, child welfare cases, all involving fetuses still in utero. But the status of the fetus is no longer the most contentious part of the debate. It’s moved further and further back in the developmental cycle. Recently the Arizona court of appeals declined to rule that a set of cryogenically frozen fertilized eggs were “persons” for purposes of a wrongful death action, saying that such a designation was for the legislature. The lawsuit was brought by a couple who had sued the Mayo Clinic after its lab lost or possibly destroyed some of the eggs. The eggs were days old, still a clump of cells; nevertheless the court was careful to craft a special category for them: “pre-embryos.” Pre-embryonic status is thus not a biological designation but rather a new legal category, a way of dodging the political controversy engendered by those who believe embryos are calling out for rescue. As John Jacubczyk, president of Arizona Right to Life, stated the argument: “Life begins at fertilization.”
Although the Arizona court did not confer personhood in this case, the matter is sure to be appealed; furthermore, an Illinois court ruled this past February that an embryo is a person, a claim that is likely to make its way to higher authorities–whether courts or legislatures–sometime in the not so distant future. So we should consider carefully the collective narratives that are shaping the debates. At one end we have the Snowflakes Frozen Embryo Adoption Program, a Christian organization that has made it its mission to rescue the unused embryos that have been harvested by fertility clinics and then discarded by couples once they do achieve a successful pregnancy. Snowflakes considers the abandonment and/or destruction of those cells nothing less than murder, and so has set out to “adopt” discarded embryos. It has rounded up women in whom to implant them, and families with whom to place the babies thus brought to term. Mere blastemas are imbued with intent and longing; indeed, the Snowflakes website asserts that it is “helping some of the more than 400,000 frozen embryos reach their ultimate purpose–life.”
On the other side of things there is a philosophically inflected concern that if cellular “life” is equated with personhood, and personhood begins at fertilization, then the very notion of the person as an autonomous entity becomes terribly vexed. Eggs fertilized in a petri dish and stored in a freezer are more consistent with our notions of property, of product, of artifice. From this angle, eggs in a dish are relatively artificial, a species of mechanical construct requiring tools, inventory, technology. At the same time, there is also a commercial narrative of altruism, in which those fertilized eggs are, not unlike the Snowflakes website’s take, so purposeful, so hyper-autonomous, that they can fight their way out of a petri dish with no help from a womb or a woman or even a mad scientist. Personhood becomes an anthropomorphizing of cellular life–the tiny but strong, the minuscule but mighty, the intelligence with design, the responsible agent, the genie in the jar that imprisons the fully formed perfect child yearning to break free. It is a very seductive story, even if it is questionable as a scientific matter. And more to the point for us in the legal community, it confuses will and determinism, potential and predestination.
But if the power of these narratives has resulted in a kind of cult celebrity status for the pre-born, or prenatal, or pre-conscious or whatever, imagine how much more creative it will get with the emerging overlays of DNA screening, of accumulating commercial interests in profiles for health insurance, in DNA banks as a tool of social engineering. Somewhere between the extremities of the moment, we must remember that there is nothing inevitable in this course; let us not be seduced by an idealized personification of destiny. Let us not forget that one in five American children lives in poverty. And at least 130,000 post-born, not-so-perfect children (“surplus” is how Seventh Circuit Judge Richard Posner once expressed it) are available for domestic adoption at any given time. Aren’t they “a person” too?