Ala. IVF Decision Doesn't Resolve When Human Life Begins

The Alabama Supreme Court recently allowed would-be parents to sue the clinic where embryos they had entrusted to it were accidentally destroyed.

This conclusion was not problematic in itself. It could have simply rested on the fact that the embryos were important property that the clinic had a duty to protect.

The uproar resulted because the court did not treat the embryos as property but claimed they were living persons. This was based on the anti-abortion claim that even when it is only a few cells, the unborn fetus is a child and aborting it is murder.

This reasoning threatens Alabama clinics' ability to provide in vitro fertilization (IVF) service. Clinics normally create a number of embryos, although only a few will ultimately be implanted in a woman. The others are discarded. If embryos are children, discarding them could be considered murder.

Embryos can be frozen, but keeping them frozen indefinitely would be pointless, a waste of scarce resources, and an expense — $400 to $1,500 per year — borne by the clinic's customers. Clinics would be unwilling to risk criminal prosecution by discarding embryos, so the increased costs of IVF would reduce how many people could use IVF to become parents.

The parents suing the clinic used property deprivation as a backup argument in case the court rejected their claims that unimplanted embryos are persons. Whether they preferred the personhood argument because of religious beliefs or because they might be able to collect more damages is not clear.

There is no objective way to determine when human life begins. But there is a way of looking at these issues that makes answering this question unnecessary. We can assume, for this purpose, that life begins immediately when a human egg is fertilized, and then ask whether anyone has the right to cut that life short.

As I understand it, murder — the wrongful ending of a life — always involves imposing a sanction. Sanctions decrease another person's satisfaction to less than it would have been if the two people had not been associated with one another at all.

Assuming that a fetus or embryo could feel satisfaction and desired to live, being destroyed would reduce that satisfaction. However we quantify it, its satisfaction would go down to zero.

If someone intentionally or negligently injures a pregnant woman, killing her fetus, this would clearly be a sanction. In the absence of the injurious action, the satisfaction of the woman and the fetus would have been higher. The injury, therefore, could be considered murder or negligent homicide of the fetus.

But if the fetus is aborted by the woman carrying it, this is not a sanction. Although her action also decreases its hypothetical satisfaction down to zero, zero is equal to what it would have been if the fetus had nothing to do with her, not less.

Abortions are very sad events that no one should undertake lightly. But if murder always involves imposing a sanction, abortion is not murder.

Pregnant women are the only people who can deprive a fetus of life without imposing a sanction on it. The fact that the abortion is performed by a doctor does not change this point, since the doctor is acting as an agent for the woman, an agency created by their mutual consent to associate.

Obviously, I am not talking about an abortion forced on the woman — say, by a government.

From this point of view, if a clinic destroys unused embryos with the consent of the parents, it would be acting as their agent and, therefore, not committing murder. And advance written parental consent could be a condition without which the clinic would not provide IVF services in the first place.

However, the clinic could still be held liable, as potentially it will be in the Alabama cases, for negligently allowing destruction of embryos.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966 and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981. His most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon and other states. Read more of his reports — Click Here Now.