Rights of the Human Embryo and Incrementalism: Arizona's SB 1393
Joe Kral, M.A.
President, Society of St. Sebastian
Editor-at-Large, Journal of Bioethics in Law & Culture
Bioethics in Law & Culture
Spring 2018 vol. 1 issue 2
On April 4, 2018, Arizona Governor, Doug Ducey, signed into law an intriguing bill. SB 1393 granted a parent, who created embryos through in vitro fertilization (IVF), legal rights to keep those embryos if they are embroiled in divorce proceedings where the other biological parent no longer wants the embryos. In many ways, this law is unique when it comes to the permissiveness of artificial reproductive technology (ART) in that it limits a very narrow aspect of it. The reason for this legislation stemmed from a case that had arisen regarding a couple embattled in a divorce case, Torres v Terrell, where the wife wanted to keep the embryos, but the husband did not. The judge ruled that the embryos be donated to either a fertility bank or another couple. The situation certainly raised many questions regarding not only the right of the biological mother, Ruby Torres but also the rights of not only her embryos but of other IVF embryos that are in the State of Arizona. But the ultimate question must be asked, does this legislation, which recognizes the rights of the embryo move toward a Culture of Life?
In order to better understand the question, and therefore better understand the answer, one must look at a few factors here. First, the Church is quite clear on its teaching regarding in vitro fertilization;[i] it is an immoral act that “dissociates”, a term used by the Catechism of the Catholic Church, the husband and wife from the sacredness of the conjugal act. It needs to be clearly stated that when human embryos are created through IVF an immoral act has taken place. As a result of this illicit practice, the Church, through its Congregation for the Doctrine of the Faith, clearly warned of potential other consequences that could happen, “Techniques of fertilization in vitro can open the way to other forms of biological and genetic manipulation of human embryos…The freezing of embryos, even when carried out in order to preserve the life of an embryo—cryopreservation—constitutes an offense against the respect due to human beings by exposing them to grave risks of death or harm to their physical integrity…”[ii]
Twenty-one years later, Dignitas Personae, was issued which even elaborated further some of the abuses that had taken place within that time period. One could reasonably argue from a moral standpoint, that the reason these abuses take place is that the human embryo is merely treated as an object, something that is devoid of human dignity. The child is not seen as a gift of God, but rather a man-made creation to be manipulated.
Secondly, it must also be noted that there are little to no laws in the vast majority of US States that regulate the ART industry. What exactly does this mean? There is a legal principle known as “qui tacet consentire videtur” or simply “silence implies consent”. This means that if the law is silent on a matter, then the action is permissible. This is why the ART industry is able to fertilize as many ovum as they want and then cryopreserve the resulting human embryos. This is why surrogacy has little to no restraints within the states. It is also why the other abuses mentioned by both Donum Vitae and Dignitas Personae are still able to take place. The absence of any legal prohibition of IVF, however, still creates an unjust situation itself; an evil situation where people are able to commit immoral actions legally without fear of legal consequence.
So given the facts, is there any way in which St. John Paul II’s principle of incrementalism as espoused in Evangelium Vitae be employed? Firstly, in order to answer that particular question, the principle itself should be explored. St. John Paul II simply states the following,
A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. Such cases are not infrequent. It is a fact that while in some parts of the world there continue to be campaigns to introduce laws favouring abortion, often supported by powerful international organizations, in other nations-particularly those which have already experienced the bitter fruits of such permissive legislation-there are growing signs of a rethinking in this matter. In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.[iii]
Another article called “The Gospel of Life and Incrementalism,” states that the principle, as elaborated by St. John Paul II, can be broken down into three parts, “There are essentially three elements to the principle: 1) An evil law must exist, 2) the legislative bill must limit the harm of the existing evil law, and 3) The proposal, if enacted, must help shift public opinion away from the acceptance of the evil law."[iv] The first question that needs to be raised, however, is he only speaking about abortion when it comes to incrementalism? While it is true that he states that “when it is not possible to overturn or completely abrogate a pro-abortion law” it is also clear that John Paul II is not limiting this principle to only abortion. In fact, when one looks at the last sentence in the above quote one sees the following, “This does not in fact represent an illicit cooperation with an unjust law [emphasis mine]…” The fact that he uses the term “unjust law” follows the reality that there are unjust laws beyond abortion. He merely is using legalized abortion as an example to help emphasize his principle. In fact, the principle could be used for any unjust law to help steer community away from the evil aspects of the existing evil law, whatever evil law that may be.
But of course, this raises another question, since there is no law that has officially legalized ART and IVF is this really applicable to the situation here in the US and, in particular, Arizona? The answer would be yes. This sort of situation has been addressed by St. Thomas Aquinas within his Summa Theologica, where he addresses the issue of custom as law, as when he states, “Accordingly, custom has the force of a law, abolishes law, and is the interpreter of law."[v] But even more intriguing is what Aquinas has to say about changing an evil custom, “Hence it is that no custom can prevail over the Divine or natural laws: for Isidore says (Synon. ii, 16): ‘Let custom yield to authority: evil customs should be eradicated by law and reason.'"[vi] So, even customs that may not be prohibited by law can have the effect of being a type of human law. And those customs which are evil are to be eradicated. So, since the human law permits the custom of IVF to take place, a “law of custom” is in effect. And given that IVF is immoral it is a “law” that needs to be eradicated. It is in this way that the ability to create human life through IVF is in effect a law and therefore fulfills the first element of the principle of incrementalism.
As was mentioned above there have been many evil aspects to this law. One particular aspect that has not been mentioned is the reality that human embryos are treated as property by the US Courts.[vii] It is impossible to find a final judicial ruling that treats the human embryos as individuals with rights as that of a born child. Rather, the courts have historically sided with the parent that wishes to destroy the embryos rather than seek their best interest as they do with born children. The current case between Nick Loeb and Sofia Vergara[viii] highlights just this particular problem. In essence, one aspect of this evil law is that embryonic human beings are not treated as human beings, but rather something that is inferior. In fact, it would seem that actual property is given more respect than these human embryos since actual property is not destroyed within these types of court proceedings. It is in this vein that Arizona SB 1393 actually limits an evil aspect of such permissiveness. While it certainly does not prohibit surrogacy, nor does it mandate the number of human embryos that can be implanted into a woman’s uterus, it does limit the harm in three particular ways. The first way is that it begins to recognize that these embryonic children are not mere property to be destroyed, just because one parent no longer wants them. Secondly, it recognizes that the biological parent has a right to protect his/her own children from harm from an abusive parent, specifically the desire of the abusive parent to destroy his/her offspring. Thirdly, it begins to recognize that the life of these embryos is a better good than the destruction of the embryos, hence beginning to recognize their right to life. In essence, some of the evil aspects have been limited and the virtue of justice is being restored gradually given the situation under the law.
Another way to see just how the law could have a chilling effect on IVF is actually expressed by pro-IVF attorney, Richard Vaughn, in his article, “New Embryo Custody Law Strips Arizonans of Reproductive Rights,”[ix] For example, Mr. Vaughn speaks about “concerns of coerced parentage with a legal remedy that does nothing to mitigate the ghoulish prospect of having multiple biological children born into a family of which you are not a part."[x] What Mr. Vaughn fails to recognize is that the embryos already have parents, but what is further intriguing about his response is that the law may actually discourage couples from participating in IVF since, as he says, it is a “ghoulish prospect” that they may have biological children being raised in another family. Furthermore, he goes on to mention this statement, “The law further requires a spouse who is genetically related to the embryos, but who does not consent to be a parent, to provide the custodial spouse with ‘detailed written nonidentifying information that includes the health and genetic history of the spouse and the spouse’s family’— helpful for the child, yet it is another onerous, open-ended burden to place on someone who has already been stripped of his or her right not to become a parent."[xi] He goes on further to state, “Under this new law, any Arizonans who have frozen stored embryos now live with the reality that, should they end up in divorce court, they may be forced to become biological parents against their will."[xii] What Mr. Vaughn fails to realize, is that when human life has been created, one does not have a right to cease to be a parent. This law begins to chip away at the very notion that there is a so-called right to cease to be a parent. What the law appears to do is to make couples realize that they do have parental responsibilities to their embryonic child. As a result, those who believe that human embryos are mere property or things may be discouraged from participating in an intrinsically disordered act in the first place.
The ART industry has every reason to be fearful of this new Arizona law; just for the fact that it is the proverbial “camel’s nose is now under the tent”. Part of the third element of St. John Paul II’s principle of incrementalism focuses on moving public opinion away from the acceptance of the evil law as stated above. Much of this gets into the very idea of law itself and how it can be gradually changed. One must keep in mind that John Paul II is speaking from a strong Thomistic tradition when he speaks about the law in his encyclical. For example, when he states, “Consequently, there is a need to recover the basic elements of a vision of the relationship between civil law and moral law…"[xiii] comes from Aquinas’ notion of the relationship between the natural and civil law.[xiv] But as is pointed out in one particular article to help explain this relationship and incrementalism it was stated,
Law, according to this tradition, is a great teacher that helps to direct virtuous behavior. With each law that limits each evil aspect, the great teacher teaches that abortion is contrary to the moral good. So, for example, when legislation is passed prohibiting the intentional abortion of a disabled unborn child, the law not only teaches that the disabled unborn child has worth, but that abortion in this context is wrong. When added, with, say, another pro-life law, that allows parents the veto power over their minor daughter’s ability to get an abortion, then one can see that the law is even going further. Not only is it wrong to abort a disabled unborn child, but it is wrong to for an abortionist to act contrary to a parent's wishes. When added up, one can reasonably see how the law has the ability to change public opinion on the matter and “chip away” at the doctrine of Roe.[xv]
So, at its very core, incremental laws are meant to help guide the public away from vicious actions. While it is clear that incrementalism is used to help guide public opinion away from the evil of abortion, one can also see how it can be used to “chip away” at the evil of IVF. For example, if this law is passed and over time a law passes that prohibits surrogacy, and later another bill that limits the number of embryos implanted, one can begin to see just how incrementalism in this area would work. It helps begin to shed the truth that ultimately, IVF is not inherently good for either a couple or the community at large.
No doubt, Arizona is now set up to begin the gradual dismantling of the evil of IVF. And it should be something pro-life organizations should be more involved in since it does directly impact on the very idea of the unborn child. Many need to understand one big point; it is not a sure thing that Roe v. Wade will be overturned by a law limiting abortion. It could very well be a law that limits the scope of IVF since the US Supreme Court could rule that embryos are indeed legal persons that should be protected under the Constitution.
One such state which has been very involved in the fight against IVF has been Louisiana. In addition to their many incremental laws, Louisiana also has a law that recognizes the IVF human embryo as a juridical person[xvi] which in some ways is similar to Arizona’s new law. As a juridical person, the IVF human embryo is afforded rights and protections under the law.[xvii] For example, under Louisiana law, the embryo is not to be intentionally destroyed, the embryo is not “owned”, and in the case of divorce the best interest of the embryo is to be weighed like any normal child. While Arizona’s law does not go this far, it is reasonable to see that Louisiana has a deepening respect for the human embryonic child. So, Louisiana divorce cases where IVF embryonic children are in dispute, the judge must seek the best interest of the child. In essence, the judge must make a decision on who he thinks will be a better parent.
This strikes in accordance with both Aquinas and John Paul II. As John Paul II states, “Even in the midst of difficulties and uncertainties, every person sincerely open to truth and goodness can, by the light of reason and the hidden action of grace, come to recognize in the natural law written in the heart (cf. Rom 2:14-15) the sacred value of human life from its very beginning until its end, and can affirm the right of every human being [emphasis mine] to have this primary good respected to the highest degree[xviii]. For Thomas, he explains his agreement with the Christian philosopher Boethius and his definition of person as being “an individual substance of a rational nature[xix].” The unborn child is not something else rather the child has a human nature and ought to be accorded human rights.
But certainly, there other incremental initiatives that should also be examined that help promote this reality of the personhood of the embryonic child. For example, that an IVF embryonic child can only be born to his/her biological or adoptive parents. This reinforces the right of the embryonic child not to be forced into surrogacy situation. But rather reinforce the natural bond between mother and child. Again, it is likely pro-ART advocates would oppose such legislation since it would diminish the practice of surrogacy, but one must remember since the embryonic child has the right to be the legally recognized child of the mother he/she has bonded with during the gestational period. The child is not meant to be property that can just be transferred.
Laws such as these help defeat a culture of death mentality that the IVF embryonic child is not a person. While SB 1393 is not absolutist, meaning it does not outright prohibit the practice of IVF, it is an incremental step toward a Culture of Life. IVF was a Pandora’s Box whose vices literally swept over the world draped in altruistic promises. Because of IVF the idea that a “right” to a child developed as if the child were private property like a house or car. As the dispute over embryonic children becomes more prevalent in the court system, they too helped develop this notion of a “right” to be or not be a parent. This mentality not only diminished the dignity of the embryonic child as a human being and person but also it tarnished the very idea of what it means to be a parent. Church teaching is clear on this point as well, “A child is not something owed to one, but is a gift. The "supreme gift of marriage" is a human person. A child may not be considered a piece of property, an idea to which an alleged "right to a child" would lead. In this area, only the child possesses genuine rights: the right "to be the fruit of the specific act of the conjugal love of his parents," and "the right to be respected as a person from the moment of his conception."[xx]
It is important to note that the Catechism of the Catholic Church recognizes that embryonic child, from the moment of his/her conception, is to be respected as a person from the moment of conception. This is where the current ART industry has failed. Along with legalized abortion, the very notion of child and parent has been greatly distorted. Legislation such as SB 1393 helps to reorient society in the proper direction. It certainly does not fix every evil aspect of IVF, but this is something that can be done incrementally over time. What is desperately needed, however, are more pro-life organizations to help with this particular issue. There are several pro-life organizations who do much to help fight the legality of abortion and work against assisted suicide but do very little (or nothing at all) to help regulate the abuses to the embryonic human person in the ART industry. As was mentioned above, it is possible that abortion may be overturned not because of an abortion regulation, but by an IVF regulation. It was ultimately Roe v Wade which refused to answer the question of the personhood of the unborn child"[xxi]. If a law is challenged that recognizes the IVF embryonic child as having rights, such as Arizona’s new law or Louisiana’s current statutes, then it is possible that the US Supreme Court could make a decision that not only is this a living human being, but as a human being has a right to life since the Constitution presupposes that one must exist in order to have any Constitutional right in the first place. As a result of this real possibility, more pro-life organizations ought to be more involved in ensuring that IVF embryonic children are protected under the law.
One important rule must come in mind when better understanding the current cultural climate when it comes to the ART industry-when children are treated as commodities to be bought, sold or destroyed then expect a culture of death mentality. The ART industry’s philosophical outlook is so pervasive that it is truly prudent to look to incrementalism to help usher in a Culture of Life. It is in this context that SB 1393 will help accomplish that task and help restore dignity to the IVF embryonic child.
[i] See Catechism of the Catholic Church nos. 2376 and 2377.
[ii] Congregation for the Doctrine of the Faith, Donum Vitae, no. 6.
[iii] Evangelium Vitae, No. 73.
[iv] Kral, Joe, “The Gospel of Life and Incrementalism”, Sebastian’s Point, March 29, 2018. The article may be viewed at https://www.societyofstsebastian.org/sebastian-s-point; retrieved April 11, 2018.
[v] Summa Theologica, I-II, Q. 97, A. 3.
[vii] See https://www.thomasmoresociety.org/thomas-more-society-asserts-scientific-fact-embryos-are-human-not-property/; retrieved April 11, 2018.
[vii] See https://www.nationalreview.com/2018/01/in-vitro-fertilization-frozen-embryos-colorado-supreme-court-drake-rooks-mandy-rooks-sofia-vergara/; retrieved April 11, 2018.
[ix] See https://www.iflg.net/az-embryo-custody-law/; retrieved April 12, 2018.
[xiii] Evangelium Vitae, no. 71
[xiv] See Summa Theologica, I-II, Q. 95, A. 2.
[xv] Kral, Joe, “The Gospel of Life and Incrementalism”, Sebastian’s Point, March 29, 2018. The article may be viewed at https://www.societyofstsebastian.org/sebastian-s-point; retrieved April 11, 2018.
[xvi] See Louisiana Revised Statutes, Title 9, Ch. 3, Section 123.
[xvii] See Louisiana Revised Statutes, Title 9, Ch. 3, Sections 124-131.
[xviii] Evangelium Vitae, no. 2.
[xix] See Summa Theologica, I, Q. 29, A. 1.
[xx] See Catechism of the Catholic Church, no. 2378.
[xxi] See 410 US 113. Interestingly, while the Court focuses on when life begins, it refuses to answer if the unborn child is a person or not. They do argue that the term “person” is only applied postnatally within the Constitution. As the majority states, “But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.” However, this still does not answer if the unborn child is a person or not. The majority argues that the Constitution’s use of the word person only applies postnatally does not address how the term person may be used more broadly such as in “all human beings, regardless of age and development, are persons.” It is in this sense that the Court refused to answer the question and thus it remains an open question to be determined by the Court, or by amendment to the Constitution, at a later date.