Omaha, Nebraska
Spring 1990
Volume 1, Number 2

Are Embryos Children? The Difficult Issue Faced by a Tennessee Judge

Joseph Allegretti
Professor of Law

The Supreme Court has consistently refused to define when human life begins, but a Tennessee state judge has rushed in where the Court refuses to tread. In a case worthy of TV's Divorce Court, the judge awarded seven frozen embryos to a woman over the objections of her estranged husband. According to the judge, human life begins at fertilization, and so the embryos are human beings--children--whose best interests would be served by being implanted in the woman and brought to term.

Was the judge's decision right or wrong? One thing is certain: He had no good options to choose from. In essence, he had to decide if embryos should be treated as children or as property. But they are neither--they are embryos. The law doesn't treat them as children; it is not murder to destroy them. Furthermore, as several commentators have noted, if a fire broke out in a fertility clinic, and the employees could save either seven frozen embryos or a newborn, we would expect them to save the child, not the embryos.

Profound Issues

On the other hand, there are problems with treating embryos as property. Some of the witnesses at the trial claimed that embryos are fungible property, like sand upon the beach. Yet they also talked about letting the embryos die in the freezer. Why talk about the death of a piece of property? If embryos were property, then presumably they could be bought and sold like a car, and upon the owner's death they would pass under the terms of a will.

We can sympathize with the Tennessee judge's dilemma. However, even if we agree with his decision, we must concede that the case raises profound and troubling issues that will not soon disappear. As legal scholar John Robertson has put it, "While the preimplantation embryo is clearly human and living, it does not follow that it is also a human life' or human being' in the crucial sense of a person with rights and interests" (Hastings Center Report, November/December 1989, p. 11).

A New Civil War?

Should the embryo be treated as a legal person with legal rights and interests? This is the critical question, a question medicine cannot answer. Medicine can tell us about the biological development of the embryo, but it cannot tell us whether we as a society--acting through our legal system--should grant to embryos the legal rights that attach to persons, rights that can be enforced in the courts against others.

Perhaps no issue in American life is so divisive. The abortion battle is being fought over the meaning and significance of personhood. It is well to remember that the Civil War was fought over the same issue. Both North and South agreed that whites and blacks were members of the same species, but they disagreed over whether that biological fact should have legal significance.

Window to the Soul

The reference to the Civil War suggests that the issue of personhood is not for the courts alone to resolve. It is not a narrow legal issue. It implicates our moral and theological and political views as well. It is a question about our deepest values. Can we as a society come to some consensus about who should be accorded legal rights and liberties; about who should be deemed members of the unwritten social contract that binds us together?

For these reasons, the problem of embryo rights opens a window upon the soul of America. We as a society must decide whether the embryo should be treated as a child or as property or as something new and in-between. The debate will be protracted and acrimonious. No doubt some will try to exclude religious opinions from the deliberations, pointing to that invisible "wall of separation" that should divide church and state. It should be obvious that such a view is gravely mistaken. Our religious beliefs reflect our deepest values--indeed, the great modern theologian Paul Tillich defined religion as matters of ultimate concern--and we cannot discuss the legal status of the embryo without bringing to bear our ultimate value commitments.

Question About Us

We cannot divorce the legal questions from our views of who we are, why we are here, and what is the meaning of our life individually and collectively. If Tillich is right, all of us are religious, whether we worship on weekends or not, and it would be a serious injustice to bar the explicitly religious from adding their voices to the debate. Religion has no privileged status in public discourse, but neither should it be uniquely disadvantaged.

In a free and diverse society, questions of personhood can only be resolved if people of differing views can come together and forge some sort of rough consensus. The real question is not about the medical or even the legal status of embryos. The real question is about us, and who we wish to be.