A lawsuit filed last month challenging California’s stem cell research program contends it would violate the constitutional rights of embryos to due process, equal protection and "freedom from slavery." The suit represents the latest tactic in a growing national campaign by leaders of the Religious Right to establish "personhood" status, and accompanying human rights, for all of what they call "pre-born" life. These conservatives are advocating sweeping legal protections not only for the fetus, but also for the embryo and even the fertilized egg.
What once was a battle over legalized abortion has become an all-out cultural and religious war on modern reproductive medicine and biotechnology – targeting everything from embryonic stem cell research to in vitro fertilization, emergency contraception and even ordinary birth control pills. Although the potential consequences for reproductive rights, patients’ access to care, and medical research are significant, the progressive community has yet to organize a coordinated response to this campaign.
Consider these examples of the Religious Right’s activity:
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Pharmacists for Life, which is demanding legal protections for pharmacists to refuse to dispense birth control pills and emergency contraception, claims its campaign is based on the belief that pharmacists should be allowed to "protect the lives of their preborn clients," meaning fertilized eggs. When women use contraception, the group claims, "the human embryonic person dies."
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Conservative religious groups are actively opposing the common practice of creating multiple embryos through in vitro fertilization (IVF) because unused embryos may be left frozen in the labs of fertility clinics, where they could eventually be discarded or donated to stem cell research. "IVF requires killing. They choose which (embryos) to implant and they create spares that will die," said Bill Beckman, executive director of the Illinois Right to Life Committee.
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Focus on the Family leader James Dobson is among those in the Christian Right denouncing pre-implantation genetic diagnosis (PGD). This is a technique that allows prospective parents to screen embryos they have produced through in vitro fertilization in order to identify those with devastating diseases, such as Tay Sachs, and avoid implanting such embryos. Dobson opposes discarding any embryos, equating it with "abortion at an earlier stage of life."
To advance their cause, these ultraconservative leaders are invoking the language of civil rights and discrimination against minorities when referring to embryos. The group that is challenging California’s stem cell research program has a name (the National Association for the Advancement of Preborn Children) and initials (NAAPC) deceptively borrowed from the struggle for African-American equality. The group’s lawsuit was filed on behalf of "Mary Scott Doe," who is described as one of an estimated 400,000 frozen embryos stored at fertility clinics. The middle name, "Scott," was chosen to refer to the Dred Scott decision and to suggest that using embryos for stem cell research is equivalent to slavery. National Review contributing editor Deroy Murdock has even coined a term for this newest of minority groups, calling frozen embryos "Microscopic-Americans."
Embryo politics in Washington and state capitols
While groups advocating these views might once have been dismissed as extremists unlikely to influence public policy, they are enjoying a warm reception in Washington and in some state capitols. The Bush administration, which considers the Christian Right an important part of its political base, has courted its leaders, and conservative members of Congress have worked to enact their policies.
When the president held a press conference at the White House in May to threaten a veto of pending congressional legislation loosening restrictions on federal funding of embryonic stem cell research, he invoked the image of an embryo as a developing person. Appearing with him were families with children wearing T-shirts saying "former embryo" and "this embryo was not discarded."
The children were made available for the event by the Snowflakes Embryo Adoption Program, developed by Nightlife Christian Adoption Services, which receives more than $800,000 in funding from the U.S. Department of Health and Human Services. "I think appearing with Snowflakes kids is a potent symbol, and I think it illustrates the truth, which is that the embryo is just that child at an earlier stage of development," commented Bill Saunders, director of the Family Research Council’s Center for Human Life and Bioethics. Dana Serrano Chisholm of the anti-choice Women’s Resource Network served on the HHS committee that awarded the funds to the Snowflakes program and described her excitement at the "new crisis pregnancy center for embryos" that "can help to save a baby that is here at no fault of its own."
The notion of the embryo as a person has found its way into state and federal policy and has been endorsed by some courts. For example, a Louisiana law regulating assisted reproduction defines an in vitro embryo as a juridical person with nearly the same rights as infants and requires that disputes over the disposition of the embryo be resolved by what is in the best interests of the embryo. South Dakota legislators in 2004 passed legislation that granted fetuses, embryos, and even fertilized eggs the same rights under the state’s Bill of Rights as human beings already born. The measure included a finding that "the life of a human being begins when the ovum is fertilized by male sperm."
Recently, state versions of the "Unborn Victims of Violence Act" – legislation recognizing the fetus as a separate crime victim when a pregnant woman is criminally attacked – have used expansive definitions of pregnancy that define personhood (for purposes of being a crime victim) as beginning at fertilization. The National Right to Life Committee reports that 18 states provide "complete coverage" by recognizing "unborn children" as potential crime victims "throughout the period of pre-natal development."
In the courts, a justice in Illinois ruled earlier this year that under the state’s Wrongful Death Act, which makes it a crime if a fetus is killed in an accident or assault, a couple can file a wrongful death lawsuit against a fertility clinic that accidentally discarded their frozen embryo. Judge Jeffrey Lawrence II of Cook County said that "a pre-embryo is a human being�?????whether or not it is implanted in its mother’s womb." The judge relied on a state law holding that "an unborn child is a human being from the time of conception and is, therefore, a legal person."
On the federal level, Senator Sam Brownback of Kansas recently suggested that creation of unused IVF embryos should be addressed by limiting the number of embryos that prospective parents can create and requiring that all of them be implanted – an idea that has alarmed infertility specialists and such groups as the American Fertility Association. Legislators in Kentucky have taken that idea one step further with a proposed measure that would allow the in vitro fertilization of only one egg at a time.
What can the progressive community do?
There are obvious reasons why members of the progressive community – especially advocates for reproductive rights and health, embryonic stem cell research, and assisted reproductive technology – should be working together to fight the Religious Right’s embryo politics. But there are historic divisions among these groups, especially the fear of abortion politics on the part of the organizations representing patients hoping to benefit from embryonic stem cell research and from assisted reproductive technology.
Reproductive rights and biotechnology are intrinsically linked in the agenda of the Religious Right and must be addressed together through development of a Progressive Bioethics Agenda that emphasizes the moral good of helping patients and their families. Pro-choice religious leaders can play a key role in shaping such an agenda, bringing to bear the views of many mainstream religious denominations that although embryos deserve respect as potential human life, they are not yet persons and that embryonic stem cell research should be encouraged as a way potentially to relieve the suffering of already-born human beings afflicted with Parkinson’s, juvenile diabetes, spinal cord injuries, and other conditions.
What would such a Progressive Bioethics Agenda look like? It would include at least the following key principles:
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Patients’ rights. The rights, concerns, and welfare of the patient must be at the center of medical decision-making and biomedical research. We should emphasize the right to make personal medical decisions based on one’s own ethical or religious beliefs, free from the moral judgments of caregivers, interference by religious fundamentalists, or government intrusion.
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Sound medical science. Caregivers must be expected to use sound medical science – unimpeded by ideology, religious doctrine, or other factors – in informing their patients about treatment options and in providing medical care.
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Responsible and ethical biomedical research. The rapid development of emerging biotechnologies must be tempered by the need to protect individual patients and the community from the potential ill effects of irresponsible research. Guidelines such as those put forth by the National Academy of Sciences are essential.
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Social justice and equity. The development and distribution of new biotechnologies should be guided by the principle of social justice and an intent not to replicate or intensify existing inequities in access to health care.
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Respect, but not personhood status, for embryos. While affirming the right of already-born human beings to make moral decisions about the future of embryos they have created, the progressive community must take care to show respect for embryos as potential human life. We should support donation of embryos for responsible and potentially life-saving medical research (in the same way that organs are donated) or for use by infertile couples.
Lois Uttley, MPP, is director of the MergerWatch Project, which works to counter religiously-based restrictions on patients’ access to care. She is co-author of a new briefing paper, Embryo Politics: Implications for Reproductive Rights and Biotechnology, available at http://www.edfundfpa.org/publications/briefing_papers.html