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Delaying parenthood via the cryopreservation of live-born children - the unintended consequences of blurring embryonic and human rights
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- Title
- Delaying Parenthood via the Cryopreservation of Live Born Children
- Authors
- Tanya Laird
- Word count
- 2799 words
Early on this piece has some really interesting things to say about the recent ruling in Alabama.
But later the premise seems to hinge on the idea that if embryos are now people, laws that apply to embryos could now apply to people (like it being ok to freeze them).
I'm pretty sure that's not how the legal system works. Am I missing some key precedent here? Children are people but certainly there are laws which apply to children that do not apply to adults, and vise versa.
I don't disagree with the idea that the ruling opens up some bizarre possibilities, but as far as I can tell "it goes both ways" is fantasy. I think there might be better ways to illustrate the absurdity of the ruling :)
How do you legally distinguish a premature infant from an embryo? The laws in Alabama apparently see no distinction between them. Freezing embryos and freezing preemies would be legally indistinguishable. If you try to pass a law stating that no one can be frozen say, 6 months after fertilization, then you would also ban normal IVF freezing.
Normally you can write laws that discriminate based on age if state of development is a factor. You can legally prohibit minors from voting because minors have, at least in theory, inferior intelligence to adults. But this doesn't apply to basic civil rights. You couldn't legally pass a law making infanticide legal, as this would violate the Equal Protection Clause. You would be giving strong legal protections to one group or another without any compelling state reason to do so. And the entire point of fetal personhood laws is that the same laws that apply to infants will apply to embryos. Anything that applies to infants will apply to embryos, and vice versa.
In short, you are forced to write laws that apply equally to both. Birth can no longer be a dividing line for anything. You could either outlaw freezing or embryos or allow the freezing of preemies. You cannot have embryonic freezing be legal, while preemie freezing is illegal. This would directly violate state fetal personhood laws like the one the Alabama Supreme Court based its ruling on.
Because the US follows the common law legal tradition and not the civil law tradition. The majority of laws in the US are case law and uncodified. When the courts rule, they tend to rule narrowly to prevent the broad misapplication of their ruling. The case law established in Alabama does no more or less than the text of the presiding judges ruling in the context it was made. It is unlikely that the ruling includes wide ranging language.
It appears that the key part in the law central to the matter reads as follows:
So the law would only come into force when a death occurred in the above scenario. Freezing a premature baby would be a wrongful act; freezing an embryo would not. Who decides? The courts. Or legislators should they choose to write new legislation that does not run a foul of constitutional issues.
Another common misunderstanding of law is addressed by the court, namely:
Basically the court is saying that different areas of law don't need to be fully harmonized in definition. Just because something wouldn't be a homicide doesn't mean it can't have other civil repercussions. Given the difficulty in even enumerating all the laws that exist, and the common law tradition, it makes sense that we wouldn't require every word to be perfectly harmonized across every law.
The full ruling can be found here: Al appeals.gov
I definitely recommend giving it a read rather than relying on others interpretations, mine especially.
Edit: and to make clear my point, the case here hinged on the claim of negligence when a patient entered an unmonitored restricted area and removed plaintiffs frozen embryos. This ruling doesn't make freezing embryos illegal; it enforces repercussions for negligent or wrongful acts that lead to their destruction. If embryos were destroyed when frozen, but proper procedure followed, i.e., no negligent or wrongful action occurred, then the law would not come into force. There is nothing in this ruling that makes freezing embryos illegal in anyway, nor does it legitimatize freezing babies.
Thank you for raising a point a silly amount of petulant US citizens don’t understand. Common law does not function like magic in Harry Potter, where you need to have the right words in the right place. Judges love dunking on rules lawyers; juries are a crapshoot between being bamboozled by them and dunking on them even harder than a judge is legally allowed to.
Even in a civil law tradition, I could see a self-respecting judge making an interpretation of the words that makes the misuse of the US commerce clause look sane to prevent an obvious idiotic ruling.
Yeah. I think that many folks, especially those inclined towards technology have this idea that the law is like a programming language that must be self similar and consistent across all areas, and that you can feed any bit of technical legal language into it and get a deterministic answer out. When the reality is more complex, more subjective, more qualitative, and often more exception than rule.
Have a great night!
Tangent from this, but could one argue that embryos in IVF storage are "illegal immigrants" too? I mean they were not born, so they do not have citizenship? So would an IFV center in Alabama now just be harboring "aliens"?
They wouldn't be illegal immigrants because they are still the children of US citizens or legal residents. You can get citizenship status by either place of birth or through your parents.
Now, there is another way this could get really strange, that right wingers would also become apoplectic over. If life really begins at conception, then shouldn't citizenship status be confirmed not by the location of birth, but by the location of contraception?
If this is the case, a clinic in the US could make a killing performing fertilization services for foreign nationals. Birth tourism has long been a thing, but this could elevate it to an entirely different level. Are you a couple living in China? If you travel to the US and give birth, that child automatically has US citizenship. However, this involves international travel while heavily pregnant, which isn't easy to say the least. Also, many countries with birth right citizenship have specific immigration laws meant to prevent birth tourism. A country might go so far as to not let any foreigner into the country past a certain stage of pregnancy if the resulting child won't already have citizenship by other means. The US can't prevent someone born here from getting citizenship, but they can stop parents from entering in the first place.
But what if personhood and, in turn, citizenship, are defined based on conception? In theory you would gain US citizenship not from being born in the US, but from being conceived in the US. Are you that couple in China? Collect some sperm and eggs at a fertility clinic in your home city. Have them discretely mailed to a clinic in the US. Have the eggs fertilized in a US lab then frozen and sent back to China. Implant the embryos and grow them to term. Your child now has full birthright US citizenship; they can even run for president if they want. And you never had to even set foot in the US. The US might ban this practice, but you might see illegal IVF clinics pop up that do nothing but quietly fertilize embryos that they receive by mail. Even if they're caught, that doesn't undo their work. All the embryos they freeze will still have birthright citizenship. If a coyote smuggles a pregnant woman across the border, the coyote and the woman are violating the law, but the kid's birthright citizenship doesn't disappear. You have that citizenship regardless of the legal status of your parents. So even if you were conceived in an illegal IVF lab in the US, you will still have birth right citizenship, if we define such things based on conception rather than birth. And it wouldn't be too difficult for smugglers to hide embryos and smuggle them through the normal mail.
I'm not sure how I feel about this overall, but the other logical conclusion to this line of thinking is that naturally conceived embryos would also have the same protections. Come here on vacation, have sex and conceive, and bam, child is a US citizen.
I don't know how advanced the technology for documenting conception, but you can bet there's be a push to make it possible with those incentives.
Oh shoot, you're right! I had thought of people doing this with IVF through the mail. But IVF isn't cheap. Simply flying there and conceiving the old fashioned way would be far cheaper, and a lot more fun! You get a vacation and a romantic getaway.
I can think of a way to pretty effective way, if a bit elaborate. A 2 month tourist visa shouldn't be too hard to get. First, track your cycle. Plan your trip to right before you would get your period. Fly to the US on a two month stay. Wait til you get your period. Then, go to three different US gynecologists. Pay them to perform an exam and confirm that you are, in fact, on your period. About two weeks later, you would be at peak fertility. Take fertility medication and get down to business. If you're successful, the pregnancy should be detectable on a pregnancy test before the end of your 60 day visit. Go back to those same three US gynecologists, have them exam you and run a pregnancy test.
This method, unless I'm really messing up my knowledge of human reproduction, would be pretty foolproof. You would have indisputable proof that you were not pregnant when you entered the US and were pregnant when you left the US. If you're paranoid, stay in a place far from any border where you couldn't have conceivably hopped across into Canada for the night. A two month stay in Colorado seems in order. Two months off work and two months vacationing in the US aren't cheap, but they're certainly cheaper than some black market IVF lab's going to charge you. A lot more fun too. Technology could of course make this cheaper and more convenient. Better pregnancy tests might do it, but I would be skeptical. No matter how smart the gadget you invent to better track fertility, US Customs and Immigration will be looking for any excuse to exclude you. Even if you carefully track when your period was, they can just say you faked the data. Even if you get doctors in your home country to write letters stating your conception date, they will find reasons to exclude their testimony. Far better, IMO, to do the entire process of conception verification by US medical professionals. Even better, gynos could even openly specialize in this sort of specialization. After all, all they're doing is performing a medical exam and making entirely truthful reports of their findings. Unlike the black market IVF lab, the doctors here wouldn't actually be violating any law.
Anyway, I umm...agree with your point. Not sure how this reply ended up at "let's plan future the best future crime."
Unfortunately, what we've seen from the Republicans is that they will ignore any harmful side effects to enact policies on their agenda. The abortion laws bring passed now are so murky about care for anyone who is or can become pregnant that it's become difficult for OB/GYNs to practice at all. There is an exodus from these states, as well as a drought of newly trained doctors because they can't get the training they need.
I guess my point is that if the romantic conception tourism we are hypothesizing were happening, I don't think it would be out of character to simply bar OB/GYNs from practicing at all, or at least denying that care to foreign nationals. Of course, that would run counter to a move to track the cycle of American women to ensure they give birth if pregnant, but unequal enforcement of laws is completely within the political gamut of the people who want this.
It's hard to imagine that happening in a place like Colorado or California in the current political climate, but ten years ago, I would have said it would be hard to imagine it anywhere, and look where we are.
I don’t really see how this follows. Citizenship is based on where you are born because of the 14th amendment. The fact that you can legally be a person before birth doesn’t change the fact that you aren’t yet born.
Note that it doesn’t say anything like “becomes a legal person” but rather very specifically, “born”. That’s black-letter law with hundreds of years of precedent supporting its interpretation and I doubt any judge is going to see it differently, much less the Supreme Court.
Let me preface by saying that I vehemently disagree with the Alabama ruling. That being said, and addressing what you say here: Perhaps you can make this argument, but I think it is far from a settled legal conclusions that if you make laws for one, it must apply to the other.
My read of these laws (I am not a lawyer) is that they are one ways statements, "if" statements as opposed to "if and only if", iff you will. The vice versa part that I am emphasized is not at all clearly intended to me.
In short:
One has been born and the other hasn't. Why can that not be the legal principle guiding the distinction? I guess the fact that we can, in our plain and imprecise language here, understand the difference between saying "premature infant" and "embryo" or "fetus" indicates to me that these notions can be delineated, especially with a more precise legal statement. We are already quite used to laws that apply to fetuses in different stages of development; even prior to Dobbs abortion could be restricted in the last trimester, for example.
Also a minor point, you say:
Maybe I am misinterpreting what you mean by this, but IVF embryos are never frozen after 6 months of normal development. The amount of development as opposed to the raw time elapsed since fertilization, regardless of development, could very well be the metric used to distinguish the two.
Well, apparently you can freeze the Thane of Fife, for MacDuff was none of woman born. (i.e. Caesarean.)
I'm talking here about time, not development. If you passed a law saying, "no child may be frozen more than X months after fertilization," you would effectively kill all IVF treatment. Freezing and storage of embryos is a normal part of IVF. You could pass a law saying, "no freezing more than three months after fertilization," but that would then apply to embryos that were frozen at time of fertilization but have been kept for three months. Again, if fetal personhood is in play, an embryo that has been on ice for 18 years is legally indistinguishable from an 18 year old person, even if that embryo is just a clump of cells.
It can't be the legal principle because you're making a legal distinction between "born" and "not born." Fetal personhood extends all the rights and protections of born children onto embryos. You can't pass a law granting more protections to unborn children than born children.
Now, in terms of laws as written, it's unlikely that existing law would allow freezing of preemies. However, existing laws, if fetal personhood is taken seriously, would prohibit freezing of any embryos. There likely isn't a law specifically allowing freezing of embryos. Rather, the regular laws of murder were written to apply to born humans. Treatments of the killing of embryos were handled by other laws with special exceptions to handle the intricacies of pregnancy. But with fetal personhood in place, regular murder and abuse laws apply.
I think under existing law IVF will likely be illegal under fetal personhood. You could try to write laws that produce a carve-out for it and specifically allow freezing of embryos, but then you'll run into problems.
If you try to define it based on time since fertilization, then you'll prohibit embryo storage. If you try to do it based on viability ("no freezing of embryos old enough to survive outside the womb"), then you would be violating fetal personhood theory. The whole point of the fetal personhood legal theory is that you can't give more rights to children than you do embryos. The court ruled that an embryo in a jar has the same rights as a born child. Under such a doctrine, carving out exceptions based on a stage of development is impossible. You could just as easily write a law that allows abortion based on level of development, but fetal personhood would prevent this. Protection from murder cannot be based on level of development.
Consider another hypothetical. Imagine if tomorrow we invented a technology to allow the freezing of actual born children. Maybe we manage to up the cryo viability size from "a hamster" to "an infant." Imagine if we could freeze an infant and revive them with 95% viability and 5% death. What would happen if an adult tried to have their child frozen?
They would almost inevitably be charged with child abuse, reckless endangerment, and other such violations. If the child didn't make it, they would be charged with murder. We simply don't accept doing that to children, as we shouldn't.
Yet for embryonic treatment, such a loss is perfectly normal. We accept that embryos have a large loss rate. And, considering the natural loss rate of pregnancies, this isn't seen as unacceptable. But with fetal personhood, the standards that apply to born children must apply to infants. Arbitrary distinctions based on age of development aren't legally viable, any more than a law making infanticide legal would be. Again, you can pass laws that restrict the rights of minors based on their neurological development, but you can't pass a law making it legal to kill or hurt them. Their freedoms are curtailed, not their legal protections. You couldn't legally write a law that grants embryos fewer legal rights than infants. You thus have to choose either making all IVF illegal or making it legal to freeze preemies. You can no longer make arbitrary lines based on birth status. That's the entire point of fetal personhood.
I disagree with this ruling, and with restrictions on reproductive choice generally, but the dividing line is simple, and it's that you can freeze one without "killing" it but not the other. It's not the freezing that's illegal, it's the killing. You don't have to make freezing preemies illegal specifically, killing them is already illegal. Freezing embryos doesn't "kill" them. This does mean that if someone invented a way to freeze a baby without killing it that wouldn't be illegal, but we can discuss the ethics of that when and if it becomes remotely medically feasible.
Edit: I didn't realize that when freezing embryos, some will certainly be lost. In that case, I think you're correct that freezing embryos cannot stay legal under this ruling.
That's the point of the article. Right now it may actually be possible to freeze young preemies without killing them. We haven't experimented with it, but in theory it's perfectly possible. The earliest surviving preemies are in the weight range of creatures that can be successfully frozen and revived.
Currently, freezing children, even if it could be done nonlethally, would doubtlessly fall afoul of child abuse and reckless endangerment laws. The state is not going to let you freeze your kid just because you're not ready to be a parent yet. The state would say you're violating their rights to a natural development or similar. But with fetal personhood, the same rights that apply to children must apply to embryos. If it's child abuse to freeze an infant, it's child abuse to freeze and embryo. In either case you're likely violating some innate right they have to natural development.
So, you could simply outlaw all IVF. Maybe it simply becomes impossible to do IVF without being guilty of child abuse. That's the most likely legal outcome under present law. You could then try to write a special exception for IVF. But I don't believe there is any legal way to write such an exception (while preserving fetal personhood), that wouldn't also make it legal to freeze preemies.
No, they would say "you could have killed or gravely injured that baby. You don't get to experiment with maybe killing your kids because you think they might be okay." If premature babies can be safely frozen, that would need to be determined under controlled conditions with quite a lot of testing leading up to it, and there would probably need to be a medical reason to take that chance. We already know that it's safe to freeze embryos, and they will be fine. If we didn't know that, we could not test that under this legal climate, but that doesn't matter because we already know it. This law means we can't test the process of freezing babies, but that was probably not ever gonna go over well.
Sure, but the legal right to freeze babies is in no way a possible unintended consequence of the ruling.
What an interesting (as in, horribly fraught with numerous unintended terrible consequences) ruling this is.
It'd be absurd for any IVF clinic to exist anymore if they could be sued for negligence leading to death of embryos: so many embryos don't make it to blastocyst stage, and so many blasts don't make it to implantation.
I did enjoy the mental imagery of me and my freezer full of embryos doing taxes together. Financially that's awesome, until power goes out and I get hauled away for killing my 200 children.
Birth and death get hazy at some point, but that's why we have doctors for these kinds of things. A person delivered through c-section is still considered "born": at what point the baby is considered born will depend on the doctor's "call".
I'm not familiar with US laws: what does this case for Alabama mean for other states? If each state can define a born person differently, how do they control for crossing state lines with embryos?
There are so many scifi plots you could use this as a premise for, where the protag started out as a frozen baby, and I would read the shit out of all of them:
Another idea: keeping wealth in the (very large) family. You and your 2000 children can pair off and marry my 2000, to ensure the empire is made of only the purest bred (us). Nobody in the empire is allowed to conceive their own, they can apply to be surrogates of the thousands of ours. The longer term and more hidden game plan is, with fancy science terms, immortality: when the tech is discovered, we'll select for the best features of "ourselves" from among our innumerable progeny and be brought back as a merge.
Kind of like an inverse-Cleon (from Foundation) situation, I love it. Lots of ways this could be approached too, from an outsider's perspective, from a faulty clone's perspective, from a multi-pov perspective as we watch society crumble over generations as meaning in life is lost
Could this please be tagged as USA?
done.