The Moral Clarity of the Pro-Life Position in Frozen Embryo Disputes

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Posted in: Reproductive Law

According to a New York Times report, anti-abortion groups have begun to join in custody battles over frozen embryos, fighting on the side of the parent that seeks implantation. Though in some ways a less sympathetic and more bizarre stance for pro-life advocates to take, I will argue in this column that there is something deeply principled and authentic about their participation in such battles, something that distinguishes it from the usual place of pro-life advocates in battles over regulations of abortion.

The Fundamental Pro-Life Commitment

The image that most of us have of the paradigmatic pro-life advocate is of an individual who is completely opposed to a woman’s having the right to terminate her pregnancy, even perhaps when the pregnancy threatens her life or health or is the product of rape or incest. Such advocates have supported bans on late-term abortions as well as compelled ultrasounds for women seeking to terminate their pregnancies so that women can see just “who” it is that they are aborting.

These measures, though, are in some sense about something quite different from the fundamental pro-life commitment to the proposition that from the moment of conception, a full person with the right to live and be free of violence has come into existence. Late-term abortions, sometimes called “partial-birth abortions” by pro-life advocates, happen at a point in pregnancy when even committed pro-choice advocates may feel some discomfort about the procedure. And an ultrasound picture is likely to move a woman to change her mind about a planned abortion only if it has begun to look a little like the baby that it might some day become.

Fighting against abortion or for regulations limiting abortion at these stages of pregnancy accordingly buys into the mainstream view (neither pro-choice nor pro-life down the line) that as a pregnancy progresses toward completion, the fetus becomes increasingly person-like and thus increasingly entitled to the respect that we would all extend to a newborn baby. The real acid test of the pro-life advocate, however, is his commitment to the zygote or embryo, an entity that neither looks nor acts like a newborn baby in any way and therefore fails to tap into the public’s sympathy for baby-like fetuses at the latter stages of pregnancy.

For someone who believes that a full person exists from the moment of conception, late-term abortion bans are a type of “cheating,” in that their very appeal to the mainstream—the fact that they regulate late abortions—challenges the pro-life view that there is no moral difference between the life of a zygote or embryo, on one hand, and the life of a late fetus, on the other. To say this differently, expressions of outrage about late abortions implicitly condone the mainstream view that the developmental stage of an embryo or fetus matters tremendously to its moral status. If, however, one believes that fully entitled personhood begins at conception, the difference between an embryo and an eight-month-old fetus is morally irrelevant and there should be no greater outrage about the killing of one than about the killing of the other.

Frozen Embryos

Having said this, though, one cannot entirely blame pro-life advocates for supporting regulations and bans that serve to highlight the differences between (rather than the putative equality of) late and early abortions. As a strategic matter, the pro-life movement is much more likely to succeed in getting laws on the books when it crafts legislation and policy on the basis of distinctions that the public embraces even when it finds those distinctions empty and wrong. Fighting for an embryo simply won’t attract the same mainstream support as will fighting for a late-term fetus that appears to suffer pain during the abortion procedure. But shouldn’t pro-life advocates sometimes be true to their core belief and honestly express their view that a baby is a fetus is an embryo is a zygote?

Enter frozen embryo battles. Couples splitting up that have created embryos sometimes fight over who gets control over those embryos. The fight is different, of course, from an ordinary custody battle over a child in that in the latter, neither member of the couple is arguing that the child should be destroyed rather than given to the other parent. In frozen embryo fights, by contrast, one member of the couple typically wishes to have the embryos implanted, while the other member wants them discarded.

Why are the embryo battles so different from ordinary custody disputes? Chiefly because the disputants (especially the one who wants to discard the embryos) generally regard the embryos as something other than—and less than—actual children. A man who contributed sperm to form the frozen embryos, for instance, may view those embryos as potential offspring that he prefers not to bring into existence as actual offspring. He and his ex-spouse, from his perspective, should not have any (or, if they already have some, any more) offspring together since they are no longer a family. Even the ex-spouse who wants to implant the embryo may argue in terms of her wish to become a parent given perhaps limited options of doing so otherwise. Once a child exists, of course, the battle shifts and properly presumes the child’s value as a person, proceeding as a fight about who gets to care for that person.

What the pro-life advocate can bring to the table by joining in an embryo battle is the view that there is already a child present with all of the rights that attach to a child. A custody battle accordingly must revolve around the best interests of the child. To the extent that an embryo truly is a moral person, the embryo’s “best interests” plainly lie with the parent who intends to nurture the child (by implanting it in a womb so it can realize its full potential) rather than the parent who wants to terminate the life of the child by discarding it.

What makes the pro-life advocate’s stance in such cases pure and authentic is that if we assume the truth of his position—that the embryo is a person—there is no longer a valid competing interest on the other side of “life.” Unlike the case of abortion, in which there is a woman’s bodily integrity at issue if the law compels her to carry her pregnancy to term against her will, the frozen embryo will not invade the bodily integrity of anyone who wishes to be free of pregnancy. Quite to the contrary, there is a willing gestational parent just waiting in the wings to be able to treat the embryo like the full person that pro-life advocates believe it to be. The only interest on the “other side” is the interest of one of the disputing parents in not gaining the status of parent at all, and that interest vanishes the moment one concedes that that parent is already a parent and that what he seeks is not prevention but termination of his parental status.

The view that life begins at conception does, obviously, have implications for the right to abortion, and most pro-life advocacy has embraced those implications in an effort to deny women the option of terminating their pregnancies. But frozen embryo disputes provide a zone where no one needs to take a position on abortion or on the relative weight of a woman’s bodily integrity interest when compared to the life of an embryo or fetus. I have elsewhere recently argued that treating frozen embryos as persons is problematic for a variety of reasons. But for a pro-life advocate who truly believes that “life” begins at conception, it is difficult to imagine a cleaner presentation of the issues that he cares about than a fight between parents, one of whom would seek to kill a person and the other of whom is battling for that person’s life. The “best interests” of the child formulation is perfectly suited here to honor the deep values of the pro-life advocate.

  • Paige Britton

    Thank you for your careful articulation of a position (pro-life) with which you strongly disagree. I really appreciate what you model here of respectful discourse.

  • Victor Grunden

    Strange where people seek justification for their actions. The pro-life movement probably doesn’t support any reproductive meddling. Those wanting the embryo saved probably will receive a financial gain(support, inheritance,etc.) while those that want it destroyed will suffer financially if a child is born. If either really wanted the child it would have been a product of normal gestation and delayed by freezing the embryo. The pro-life stance should be that all embryos frozen should not be destroyed under any circumstances, divorce or not, and the progenitors will be jointly financially responsible for the child. But, that’s probably not the opinion sought.

  • J.E. Tarrant

    As a thought experiment this is not bad, however, there are some interesting points of law that could be thought out by this. For example, typically it is the man that wants the embryos either, not implanted in the woman or destroyed. I know it is fun in our culture to belittle fathers, however, let us be honest and accept the fact that custody disputes overwhelmingly favor the female, and that thanks to Title IV-D, child support (also almost exclusively received by women) can be a horrendous financial burden on a man. It is understandable then, why a man might have difficulty in wanting a child it is hard to conceptualize being brought forward when he may be permitted minimal contact and yet maximum fiscal responsibility for it.

    What if the playing field were a bit more level? Could the male demand that the woman who donated the eggs have the embryos implanted? It could be considered a breach of contract that she did not, they obviously created them with the intent that she would carry them to term. Could he demand the embryos be released to him and implanted in a different woman? A new wife or girlfriend, perhaps, or a paid surrogate. Then how would custody be shared?

  • Ian Quinn

    We have absolute sovereignty over our own body and that which is inside it – not what is outside of it.
    I am pro-choice. I approve of using human embryos for scientific experiments that likely eventuate in their destruction &/or death. I even approve of deliberately creating human embryos for such purposes – it should be legalized.
    Having said that, I agree with the writer of this article that the pro-lifers have the vastly more logical and convincing arguments on these frozen embryo disputes between divorced couples — it would seem that it is in the best interests of a viable embryo to be in the custody of a party that actually wants it to become a human – when one parent wants the child and the other doesn’t, then the child goes to the parent that wants it.