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A Step in the Pro-Life Direction: Arizona's New Law Protects Embryos Created by IVF
Joseph Kral, M.A. 26 July 2018
On July 1, 2018, Arizona SB 1393i went into effect. This one-page bill could have a seemingly profound impact within the pro-life legislative community for what it accomplishes. SB 1393 is profoundly unique in that it recognizes the right to life of human embryos, created by in vitro fertilization, whose parents are in the process of divorcing. But a large moral question remains, how exactly does this new law help society move towards a Culture of Life?
Before this question can be answered properly, a little historical background is needed. Typically when a couple, who are divorcing, have extra embryos created from IVF, it is not unusual for the court to rule in favor of the spouse who does not want to be a parent meaning that the embryos are then destroyed. In essence, the court found a mythical “right” for someone not to be a parent even though the person helped to create human life. Specifically, in Arizona, a similar case was playing out, Torres v. Terrell. However, the judge had ruled that the embryos not be destroyed, but rather the embryonic children be donated to either a fertility bank or another couple. This decision spurred the legislation that is now in effect.
The simple fact is that most states do not have many laws that regulate the artificial reproductive technology industry. Furthermore, because of Roe v. Wade, unborn children are not recognized as persons with constitutional rights. This combination of the silence of the law and a US Supreme Court decision has given rise to the reality of divorce court ruling that human embryos created by IVF are essentially property that can be destroyed by the party that no longer wants it. This is obviously a problem since human life is taken.
Other than the obvious of saving human life, how does SB 1393 move Arizona toward a Culture of Life? To answer this question, one must look at the principle of incrementalism as espoused by St. Pope John Paul II in his encyclical Evangelium Vitae, also known as “The Gospel of Life.” The principle has three criteria that must be met in order for a piece of legislation to morally acceptable: 1) That an evil law must exist, 2) that the legislation will limit the harm of the evil law, and 3) help move public opinion away from the negative consequences of the evil law.ii
Firstly, SB 1393 needs to be explored in light of the first element of the principle, namely, was there an evil law in effect? This element needs to be explored in a little depth since technically, there is no law specifically stating on what to do with embryos after they have been created. However, there is a legal principle that addresses this sort of situation. This legal principle is called “qui tacet consentire videtur” or simply “silence implies consent”. Essentially, there is an unwritten law in effect and this unwritten law (or custom if you will) needs to be addressed.iii Even bad customs can have the effect of law and in this case, the creation of human life that is callously frozen or destroyed is that particular custom. IVF has certainly opened a Pandora’s Box of grave ethical concerns. So, it is clear that there is an evil law in effect that must be changed.
Secondly, how does SB 1393 limit the harm of the existing law? While it does not prohibit the practice of IVF, or ban the immoral practice of surrogacy which treats both the unborn child and surrogate mother as commodities, it does limit the practice of treating the embryonic child as mere property when it comes to divorce proceedings. It recognizes that the parent has the right to protect their child’s right to life from an abusive parent (who wants to destroy them). Furthermore, the law would recognize it as a good that these embryos live.
Thirdly, since law has the effect of letting society know what is proper behavior and what is not, it has the power to help move public opinion away from the negative consequences of the existing evil law. The mere fact that the law begins to recognize certain things as stated above helps to show just how it begins to move public opinion. For example, people begin to recognize the inherent dignity of the embryonic child if the law stipulates it is wrong to destroy them just because someone no longer wants to be his/her parent. But imagine this in an incremental way, Arizona now has SB 1393 in effect, what if Arizona were to pass another law limiting the number of eggs harvested? In essence, the law is now saying that not only is it wrong to destroy these embryonic lives, but it is wrong to create too many human embryos as well in the IVF process. The law is gradually moving public opinion towards the sanctity of human life and away from the idea that embryonic human life is disposable.
But what is even more intriguing about this law? What else can it contribute toward the Culture of Life? With the impending Senate debate over Judge Brett Kavanaugh as Supreme Court Justice, it has become clear that many are concerned about how he might rule as a justice when it comes to the rights of the unborn. The reality is that the US Supreme Court could go in four different directions: 1) Recognize no restriction on the destruction of the unborn, 2) Continue the same course, that they can be some restrictions, 3) Move the abortion issue to the states, or 4) Recognize that unborn human beings have constitutional rights. While, many think that the third option is the most likely, the fourth option is not completely out of reach especially with legislation such as Arizona’s SB 1393 if it were ever to be challenged. This, of course, would have a profound impact on the Culture of Life if the fourth option were ever to be handed down in a US Supreme Court decision.
In truth, many organizations who lobby for pro-life laws need to seriously consider urging their legislatures to pass legislation such as SB 1393. This pro-life legislation is desperately needed in the vast majority of states. Even Dr. Ted Furton of the National Catholic Bioethics Center recently stated that the passage and enforcement of SB 1393 was “a positive development.”iv It is time to help embryonic children get the proper legal recognition they so desperately need.
[i] The language of the final bill may be viewed here: https://www.azleg.gov/legtext/53leg/2R/laws/0128.pdf
[ii] See No. 73 of Evangelium Vitae.
[iii] See Aquinas, Thomas, Summa Theologica, I-II, Q. 97, A. 3.
[iv] See https://www.catholicnewsagency.com/news/new-arizona-law-awards-custody-of-frozen-embryos-in-favor-of-birth-16782.
Joe Kral, M.A., is President of the Society of St. Sebastian and Editor-in-Chief of the Journal of Bioethics in Law & Culture