Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Friday, March 13, 2009

A Question I've Been Pondering

I've been thinking about abortion lately, and I thought I'd ask the The Citizens (and our friends) for their opinions on some delicate matters. It has always bothered me, somewhere in the back of my mind, that many of the pro-choice arguments we hear revolve around a woman's right to control her own body. I support that, of course, but I wonder if we are talking about the heart of the matter here.

So here is the question: suppose (and this may well happen within our lifetimes) medical science advances to the point where a human egg is viable from conception, meaning there is some form of artificial womb available, perhaps cheaply. How would the existence of such a non-invasive alternative to pregnancy alter the equation? Along those same lines, it would be possible for "pro-life" activists right now to offer to be surrogate mothers, bringing "unwanted" fetus to term within their own wombs. (Have any pro-life groups ever have contemplated such a "womb bank"?) If the dominant issue is the risks and problems associated with pregnancy, would a woman unwilling to accept those risks and problems have any moral obligation to avail herself of alternative to her own pregnancy, if they were available?

I guess my point is that eventually we will have to push past the issue of unwanted pregnancies to the deeper issue of unwanted parenthood. So my final question is, to what extent can a mother (or a father, for that matter!) choose to terminate an "accidentally" created embryo in order not to become a parent? At what stage of its development does a fetus start to acquire some measure of a right to come into existence?


Anonymous said...

Actually, there are pro-life groups who work to allow women to “adopt” frozen embryos in order to keep the little cell clusters from going to waste (look up “snowflake babies”).

The problem to my mind is one of intent. My understanding is that most unused embryos were not donated by radical man-hating feminists like myself in order to stick it to The Man, but are the byproducts of infertility treatment.

Most women who undergo IVF take fertility drugs to stimulate ovulation, then have a number of eggs retrieved at a time (as opposed to the general 1-2 eggs per ovulation cycle). Depending on a number of factors (maternal age, health issues), the fertilized eggs are then transferred into the womb. It is apparently quite common to transfer several fertilized eggs, especially in older women and those with specific conditions.*

Apart from Octomom, most women who undergo fertility treatment are not interested in having an enormous brood. The value of these unused fertilized eggs is an interesting ethical question – maybe the Average Reasonable Woman wouldn’t care about using them all, but she wouldn’t want them to be donated to any Thomasina, Dixon or Harriet lest she run into a little kid at playgroup who looks exactly like her.

I must admit that in confronting abortion issues, it is really, really hard for me to see past the control of women’s bodies. Pregnancy (for most women) is so overwhelmingly unpleasant and the care of a child such a daunting task that I have real problems with foisting it on anyone who doesn’t want to do it.

-Seventh Sister

*I don’t have any first-hand knowledge of this stuff, so I apologize in advance to any readers who have more experience in this than I do. As an aside, some states that actually require health insurers to cover fertility treatment (most don’t) have found that when IVF is covered by insurance, it actually saves money. When there are fewer financial pressures, women tend to try more rounds of IVF and doctors tend to transfer fewer embryos per cycle (which leads to fewer expensive and often dangerous high-order mutliple births).

Pombat said...

Given that the fertilised egg would have to be removed from the woman somehow, we're not going to have a "non-invasive alternative to pregnancy" until we've invented Star Trek style transporters, but that aside, tricky question.

There have been many points in my life where pregnancy, let alone parenthood, was simply not an option. Whilst I was at university for example - even if I resolved to give up the child for adoption, I could not have afforded to be pregnant whilst studying - having never been pregnant I have no idea how it would be for me, but from observing friends I'm pretty sure I would not have been able to attend all my lectures, and my bar work (how I paid for uni) would have been out of the question from early on in the piece, due to the smokers (and later, exhaustion I'm guessing). So, had I gotten accidentally pregnant at that point in my life, I would've wanted the right to choose what to do about it (note - I have no idea if I could ever go through with an abortion - it's a question I'm glad never to have come up against).

If I ended up going through IVF to have a child, I would not want someone else to have my 'leftover' embryos. I have no rational explanation for this, simply the emotional one that those embryos would be 'mine', and I wouldn't want them taken by anyone else. Bizarre view I know, given that the alternative is their destruction. But I'd rather that I think - I currently find it hard to think of a frozen cluster of just a few cells as a person - more a possession.

If we had the situation of being able to magically transfer my accidental pregnancy to another person, at a time in my life (such as above) when I could not be pregnant, I really don't know what I'd do. I'm guessing that my emotions would be such that I'd want the pregnancy to be continued, but as with the IVF embryos, I'm really not sure I'd be happy with someone else taking 'my child'.

Like Seventh Sister, my primary focus anytime there's a discussion about abortion and wider family planning is women's control of their own bodies - we should all have the right to only fall pregnant after we have chosen to do so, just as we should all have the right to only have sex when we want (with who we want), only be touched when we want (by who we want), and otherwise go through our lives knowing that we and only we own our bodies, and the choices that are to be made with them. Even someone such as myself - 5'9" and not petite nor demure by anyone's standards - has had to deal with unwanted physical attention at times (i.e. groping), courtesy of men who seem to believe women are nothing but objects.

In terms of the here and now, and what's best for the child - forcing someone to go through with an unwanted pregnancy is only going to be bad for the child. Either that child is going to grow up unloved and resented, or they're going to be put into care, which from what I've heard is not a nice place. Best case scenario would be adoption as a baby, followed by many years of "why did my 'real' parents not want me?" soul searching.

Abortion is also one of the few areas where I think it's right (with today's technology etc) for one gender to have more rights than the other - since it is the woman who has to go through the risks associated with either the pregnancy & birth or the abortion, she should have more of a choice & say in the matter than the father. Also, if she wants to terminate but he doesn't, there's nothing to stop him changing his mind and walking away once the pregnancy has gone on long enough that she can't.

Raised By Republicans said...

Here is another wrinkle to make this an even thornier discussion. Is the question viability per se, viability outside a womb, or sentience?

If we focus only on viability and an embryo is viable at conception, then that would presumably rule out certain kinds of birth control. Taken to ridiculous extremes, it might also encourage some social conservatives to argue that any attempt to prevent the sperm and egg from meeting is immoral. We could easily see an increasingly intense "Every Sperm Is Sacred" argument.

If we look at viability outside a womb, then we may already have to figure out how do we distinguish between Dr. S.'s artificial womb and an incubator complete with IV food sources and respirators. I'm not a doctor (well, not THAT kind anyway) but it seems to me that the existence of a circulatory system would seem to be a necessary condition for some sort of distinction.

If the question is sentience then we've got to confront a series of psychological and neurological issues that we've barely begun to exam thus far. When does the brain develop? How much brain development is required? Anti-choice activists are fond of arguing that fetuses feel pain. But then so do fish and lizards. When does the medulla oblongata start to develop? What about the cerebrum?

Dr. Strangelove said...

[Quick aside: I just want to reassure everyone that I fully support a woman's right to choose. Reading through the thoughtful responses here, for which I am grateful, I worry I might not have been clear on that.]

Seventh Sister: Very interesting about the "adoption" of frozen embryos. (By the way, I cracked up when I read, "radical man-hating feminists like myself in order to to stick it to The Man...") I agree very much that pregnancy is a huge burden that should never be foisted on anyone unwilling. I also agree that parenthood is a huge responsibility that should not be forced on anyone unwilling if it can possibly be avoided.

Your discussion of IVF segues nicely into the critical question of the rights of an embryo/blastocyst/fetus at various stages of its development. Obviously if these were frozen children then we would never discard them. But a clump of cells should have far, far fewer rights. As medical science evolves, at some point we are going to have to move away from easier questions of "viability" and "pregnancy" to the thornier issues of rights and parenthood. In my view, before the brainwave activity begins--about eight weeks gestation period--the embryo is not yet "brain alive" (the opposite of "brain dead", if you will) and so it has very, very few rights of personhood, if any. I feel this is a more robust foundation for law than viability concerns or pregnancy/privacy issues.

Pombat: Good point that removing an embryo will never be truly non-invasive. As medical science advances, however, removing an embryo could be end up being far, far less invasive than nine months of pregnancy. You bring up an excellent point about "taking 'my child'" and this brings up an issue I had not included: ownership or quasi-ownership of embryos vs. custody of children. If, as I explained above, one believes a one-week-old embryo has very few rights as a person, then the law would tend to treat it as property.

We may still wish to consider some middle ground, where an embryo has a very rights of personhood and is not quite property. So, for example, it is horrendous to imagine one might mutilate an embryo and then sell it for cash to some desperate mother in a third world country. On the other hand, altering the genes in an embryo to weed out diseases or improve various desirable traits, even when one plans ultimately to give the infant up for adoption, seems very sensible to me. But you can see how there are not many bright lines here.

Oh, and I also agree that (with today's technology) women should have more rights in this area because of pregnancy concerns. When medical science alters that equation, however, rights may also have to be rebalanced. We should look for a framework robust enough to handle these coming changes.

RbR: I am not sure what you mean by "artificial womb" vs "incubator." I guess I was not clear: what I was calling an "artificial womb" was precisely an incubator with IV food sources, respirators etc.--some apparatus outside a woman's body that takes care of the pregnancy. I fully agree that the question is sentience, and the issue of brain development is crucial here. As I have written, as medical science advances we are going to have to start moving away from the easier arguments re viability and pregnancy and start dealing with the tougher issues of brain development, the temporal inherence of the rights of personhood, and the right not to accept the responsibilities of parenthood.

Raised By Republicans said...

Yeah, as I was writing that I was having difficulty figuring out what the difference between an incubator and an artificial womb would be. That's why I think a circulatory system would be central to any distinction. A zygote doesn't have a circulatory system (right?). So you couldn't stick an IV into it or put it on a traditional respirator. I would say the distinction could be the need for some sort of artificial placenta vs the ability to use the same kinds of life support that would be appropriate for a sick human who had been born more or less normally.

With regard to sentience, my initial response to your standard of "brain aliveness" is positive. I think that's probably a good place to start.

The Law Talking Guy said...

There is an idea out there that at the moment of conception sperm meets egg and, whammo! a human being is created, at least definitionally. One of the antifeminist things in this viewpoint is that it seeks very early to separate the baby from the mother. In fact, it almost seems that men with mother issues are projecting some sort of separation back in time to before birth. I was always an individual, never part of mommy. Well, it's just not true that a baby is created inside the mother at the time of conception from some fairly inert materials. It also overemphasizes the role of the father in creation of the baby. Let me propose a different view of conception.

A sperm is absolutely tiny, even compared to the egg. It is little more than a carrier of genetic information. After receiving a drop of genetic information from the sperm, a woman begins to generate a new human being out of her body - out of herself. Except for the few informational molecules received from the sperm, every molecule of the baby comes directly from the mother's body. A very high number of these fetuses fail to develop and are spontaneously aborted. At some point around the sixth or seventh month, the blob of protplasm is sufficiently developed into a separate organism that the main roles of the mother can begin to be considered as life support for a separate being.

Gestation is a process. It is not a moment in time. And that process is not taking place *within* a woman - like a tapeworm - but is literally part of her body.

The notion of gestation promoted by conservatives and perhaps abetted by the trimester framework in Roe is one of maternal-fetal conflict. Her right to self-determination versus its right to self-determination. In this view, the woman's right to self-determination is equated easily to selfishness in the face of the helpless child supposedly within her (as if a boarder).

So the fetus should not be viewed as within a woman, but as a part of the woman's body - as a part of herself.

What makes the situation more difficult is the recognition that birth is not the exclusive means by which a fetus can become a baby. A child can be aborted naturally or surgically after 6 or 7 months and then finish development, although its chances of survival are far less than if brought to term. It is at this point that we start to ask ourselves if the child is really so much a part of the mother that it cannot be said to have a separate existence. The transition between being a part of the mother to a separate being dependent on the mother is a process, but it can reasonably be said to have happened during the final trimester. That is the first time, I believe, that it is reasonable to consider the separate interest of the fetus in survival. Birth is also not the end of the process. We mark the physical separation of the baby with full human status under the law for good reason, but the proponents of the "fourth trimester" theory have a point that the first 6-12 weeks of a baby's life is not very far removed from the time in the womb immediately before birth.

So I think the focus on a woman's body is exactly where it should be.

Dr. Strangelove said...

I appreciate your points that (1) the role of the father is overemphasized and (2) the gestation process is a process of the woman's body, not something happening within some cavity inside the woman. I like your descriptions. So let me try to use your (improved) language to ask again the basic question that has been troubling me: Does our calculus change as medical science progresses? And if so, how?

With advances in medicine, increasingly immature fetuses already can be brought to term outside of the womb. Eventually it may be possible to fertilize an egg in vitro and develop it all the way to a healthy, happy baby without ever requiring a woman's body. If a zygote could be safely removed from a woman's womb and brought to term successfully by artificial means--if "viability" ceases to be a consideration--then either the balance in the "maternal-fetal conflict" framework in Roe v. Wade shifts dramatically or the framework no longer applies (if it ever did).

Now and for the foreseeable future, I agree that the focus must remain on the woman's body in almost all cases. But eventually, I worry that we will have to answer the perhaps deeper questions of how rights change as the body changes. We will have to decide the manner in which the rights of personhood are accumulated as the fetus develops from blastocyst to baby.

The Law Talking Guy said...

"Eventually it may be possible to fertilize an egg in vitro and develop it all the way to a healthy, happy baby without ever requiring a woman's body."

I'm not sure this will be possible. I am sure it would be horrible. In law there is a wonderful phrase (archaic) to describe the difference between one's lawful heirs (who may or may not be related) and a limitation of the lawful heirs only to those of actual biological descent. The phrase is "the heirs of his/her body." I like the idea that human beings come not from a chemical reaction of some kind, but from other human beings, out of other human beings. I question what would motivate a society to try to break that chain of being.

Anonymous said...

In three words, here's the medical issue we'll have to get past - fetal lung development.

Under a certain age (about 22 weeks' gestation), the lungs are not sufficiently developed to allow the premature baby to survive outside the womb. We can feed these babies, we can keep them warm and try and help them breathe, but we can't fix their immature lungs. Despite better and better outcomes for premature kids, this deadline hasn't budged (if at all) over the last 15 years.

-Seventh Sister

USwest said...

Dr. S, I do see the issue as a right to exercise some control over what happens to my body. But even in the scenario you sent up with surrogate wombs, I think it misses the point of whose rights take precedence- those of the unborn (clearly defined as still in a womb" or those of the already born. Or even the rights of adults vs. the rights of children, since an infant is a child. Or the right to be a non-parent. I grew up in a loving household where I was reminded that until I turned 18, I had no rights. I was just a kid. After 18, I had some rights. But I didn't get fully fledged American citizen rights until I had my own place and paid my own rent.

And our court system is already struggling with this. Custody battles over frozen eggs have now gone through the court system. See This paper describes custody battles over ovum yet to be implanted. It says that incases where one party is against implantation, the courts tend to side with the individuals right NOT to be forced into parenthood. This is especially true in divorce cases. Think about the implication for child support issues.

In a 2004 case, a woman had the wrong embryos implanted in her womb and didn't find out until 10 months later. In a case in the UK, a white woman had a black woman's embryos accidently implanted in her. After a 2 year court battle, the donor was declared the biological parent of the children.

Pombat wrote "If I ended up going through IVF to have a child, I would not want someone else to have my 'leftover' embryos. I have no rational explanation for this, simply the emotional one that those embryos would be 'mine', and I wouldn't want them taken by anyone else."

It isn't irrational. I agree with LTG, that child is part of your body, quite literally. It's a growth. It carries more than looks in the genes. We know that it has genes for personality traits, likes and dislikes, etc. It's a piece of you soul walking around. So to give up a few little cells to some "artificial womb" that someone else would raise seems scary to me. It would be like having your identity stolen, like something out of Philip Roth's "Operation Shylock". This is a similar question that men face when they use a sperm bank.

Per LTG's observation of the over emphasis on the male role in reproduction, I have two thoughts. One reason behind this is that every part of reproduction takes place inside the woman and is thus, unobservable. I have never seen one of my own ovum for instance- at least not to my knowledge. But men see their sperm and the plumbing that makes it all possible. They are aware of their bodies. This awareness has been denied to woman largely due to social mores. Many women in Western society (unless they are French) see pregnancy not as something spiritual, but as something medical that "happens" to them despite their attempts to prevent it. And it is often treated as such.

Another thought: In a recent episode of NPR's radio Lab, they explored Sperm. It was interesting. Sperm were first discovered in the Middle Ages when microscopes were first developed. And because sperm were seen moving in the microscope, many scientists at the time believed that these were little beings that held the essence of life. The soul r the new human, they thought, was encased in the sperm. No one knew about the woman's role until much later.

Raised By Republicans said...

And yet, despite giving sperm all the credit for being the "essence" of life they still blamed women for "being unable to produce sons" if the baby was a girl.

I guess there doesn't need to much logic to patriarchy.

The Law Talking Guy said...

RE: USWest's comments about sperm banks. I still do not understand why a sperm donor at a sperm bank is allowed to donate anonymously and be off the hook for parental support payments but a man who has a one-night stand is liable to support the child. In both case, the man doesn't want to have parental rights. Put another way, why is it impossible for a father who impregnated a woman naturally to ever disclaim paternity, but totally acceptable for a father who impregnates a woman via a spermbank to disclaim paternity?

Furthermore, a sperm donor never acquires any parental rights at all, whereas a "natural" father automatically does.

What's odder to me is that a sperm donor knows, indeed intends, that the sperm be used to produce a child. The one-night-stand guy has no such intention.

Dr. Strangelove said...

I'm trying to put this in words, and I'm having trouble, so forgive the crudeness of this. I'm hoping someone with greater legal knowledge can figure out what I'm trying to say, and perhaps say it better. While perhaps also explaining why I am wrong :-) Anyway, here it goes.

The responsibility for a fertilized egg belongs to those who made the final decision to fertilize it (the decision to take that last act but for which the egg would not have been fertilized). On the other hand, the custody of that fertilized egg--by which I mean the right to make decisions regarding that fertilized egg--belongs to those whose genetic material was involved. These are not always the same people. Here are some examples.

(a) A court may award custody to the mother but require the father to pay child support. Both parents retain equal responsibility, but only one retains custodial rights.

(b) When a man and a woman have consensual sex, the law rightly presumes that the decision to do so entails the decision to accept the risk of fertilizing an egg. Whether they desired to or not, they made the final decision to take that last act.

(c) When a man donates sperm to a sperm bank, he waives his custodial rights and does not make the decision to fertilize the egg--that decision is made by the woman alone. Thus the mother has sole custody and sole responsibility. If a man could choose from an egg bank, the situation of course would be reversed.

(d) When a woman is raped, the criminal act strips the man of his custodial rights, but not his responsibility to pay child support. In this case, the woman is not responsible for the egg initially--but since (like it or not) abortion is always a physical option, the woman assumes legal responsibility if she decides to keep the child. If abortion is forbidden, the government must support the child--as it is the government that has made the decision not to abort.

(e) When an infertile couple involves a surrogate mother to raise the child, the lion's share of both the responsibility and the rights belong to the couple, but nevertheless a portion of rights and responsibilities are retained by the surrogate mother, whose genetic material is deeply involved biologically and who also consents to continue the pregnancy. Usually the surrogate's rights are waived and her responsibilities are assumed by the infertile couple, but exceptions may arise. If the couple were to die, for example, the surrogate would have some responsibility to raise the child. Likewise, the surrogate's right to abort and/or refuse medical treatments are considerable.

That's my best take on it right now.