Medical “advances” have made the simple act of human reproduction bafflingly complex. New methods to prevent and promote pregnancy and birth are constantly being developed. This makes it difficult for regulators, legislators, concerned citizens and even the Catholic Church to determine what is appropriate. For example, gamete intrafallopian transfer (GIFT) and intrauterine insemination (I.U.I.) as marital reproductive aids are neither “approved” nor “disapproved” by the church because the Sacred Congregation for the Doctrine of the Faith has not yet pronounced on the subject.
The religious, existential and emotional aspects of human reproduction create additional impediments to agreement concerning the propriety of reproductive technologies. Also, the lack of uniform terminology makes reasoned discourse of this most sensitive of subjects nearly impossible. But this linguistic obstacle, at least, can be remedied and is a necessary first step for consensus building.
A lexicon of life
The Catholic Church teaches that human life begins at the moment of “conception,” which is defined as the joining of a sperm and an egg without regard to the method of conception—natural or artificial through in vitro fertilization (I.V.F.). This definition differs from Merriam-Webster’s, which is “the process of becoming pregnant involving fertilization or implantation or both.” Emphasis on the word “pregnant” implies fertilization or implantation occurs within a woman’s body, not in a laboratory.
The Catholic Church teaches that human life begins at the moment of “conception,” but legislators fail to use consistent terminology to describe various stages of human development.
According to the American College of Obstetricians and Gynecologists, “[c]onception is a lay term that has no scientific validity and is not generally used in the medical literature because of its variable definition and connotation.” Researchers instead use the word “fertilization” to refer to “the union of sperm and ovum.” Such distinctions makes a difference when determining the legal status of preborn human reproductive cells.
Legislators also fail to use consistent terminology to describe various stages of human development. Some of these distinctions result from ideological differences between pro-life and pro-choice individuals, but even pro-life lawmakers use disparate language.
Pennsylvania, for example, defines “unborn child” as a fertilized human egg, while Alaska withholds that appellation until the fertilized egg is “carried in the womb.” Mississippi’s recently enacted fetal heartbeat law defines “unborn human individual” as “an individual organism of the species homo sapiens from fertilization until live birth.” Under Arizona law, the term “human embryo” means “a living organism of the species homo sapiens through the first fifty-six days of its development, excluding any time during which its development has been suspended,” but in Louisiana, a “human embryo” is “an in vitro fertilized human ovum, with certain rights granted by law, composed of one or more living human cells and human genetic material so unified and organized that it will develop in utero into an unborn child.”
The term “abortion” also has numerous statutory and regulatory definitions. Pennsylvania defines abortion as:
[t]he use of any means to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child except that, for the purposes of this chapter, abortion shall not mean the use of an intrauterine device or birth control pill to inhibit or prevent ovulation, fertilization or the implantation of a fertilized ovum within the uterus.
Arkansas’s newly enacted “trigger” law, which would “abolish” abortion and is designed to take effect if the U.S. Supreme Court overturns Roe v. Wade, defines abortion as:
the act of using, prescribing, administering, procuring, or selling of any instrument, medicine, drug, or any other substance, device, or means with the purpose to terminate the pregnancy of a woman, with knowledge that the termination by any of those means will with reasonable likelihood cause the death of the unborn child.
The Arkansas law adds that “An act…is not an abortion if the act is performed with the purpose to: Save the life or preserve the health of the unborn child; Remove a dead unborn child caused by a spontaneous abortion; or Remove an ectopic pregnancy.”
And Alabama defines abortion as:
[t]he use or prescription of any instrument, medicine, drug, or any other substance or device with the intent to terminate the pregnancy of a woman known to be pregnant with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. Such use or prescription is not an abortion if done with the intent to save the life or preserve the health of an unborn child, remove a dead unborn child, or to deliver the unborn child prematurely in order to preserve the health of both the mother (pregnant woman) and her unborn child. The term “abortion” as used herein does not include a procedure or act to terminate the pregnancy of a woman with an ectopic pregnancy, nor does it include the procedure or act to terminate the pregnancy of a woman where the unborn child has a lethal anomaly.
This same definition is used in a recent bill proposed to criminalize virtually all abortions in Alabama.
These different definitions affect not only abortion laws but other criminal statutes, civil liability and parental rights to fertilized eggs.
Implications for criminal law
State laws punish crimes against persons differently from crimes against property, which makes the definition of “person” extremely important. New York, for example, uses a historic common law definition that limits “person” to “a human being who has been born and is alive.” New York is in the minority when it comes to preserving this common law rule. Legal abortions always are exempt from criminal prosecution, but 38 states, including California, have enacted statutes criminalizing fetal homicide. There is little uniformity among these laws.
Michigan prohibits “the willful killing of an unborn quick child by any injury to the mother.” “Quickening” is determined by “fetal movements which can be felt by the mother.” Maryland punishes those who cause death or serious injury to a “viable fetus,” which means “there is a reasonable likelihood of the fetus’s sustained survival outside the womb.”
State laws punish crimes against persons differently from crimes against property, which makes the definition of “person” extremely important.
Arkansas’s criminal code provides an expansive definition of “person” as “an unborn child in utero at any stage of development” and defines an “unborn child” as “offspring of human beings from conception until birth,” but it excludes from criminal prosecution “[a]ssisted reproduction technology activity, procedure, or treatment” and acts “occurring before transfer to the uterus of the woman of an embryo created through in vitro fertilization.” It is unclear how this exclusion fits within Arkansas’s strict abortion laws.
I.V.F. involves the fertilization of multiple human eggs in a laboratory and the transfer of one or more of those embryos for gestation in utero. The embryo develops into a blastocyst five days after fertilization, which is the optimal transfer time. Current international and federal rules prohibit researchers from developing human embryos in a lab for longer than 14 days, although it is likely they could survive longer. Untransferred embryos not cryogenically preserved for future implantation or research are discarded. The implantation of multiple embryos can result in more developing fetuses than desired by the mother; in many cases they are aborted during the first or early second trimester, in a process called “multifetal pregnancy reduction.”
Arkansas is one of 15 states that requires some health insurers to provide I.V.F. coverage. There is some evidence that insurance coverage for I.V.F. encourages single embryo transfer (when families must pay for each I.V.F. procedure out-of-pocket, they may opt for multiple embryos to increase the chances of a successful pregnancy). This helps reduce multiple pregnancies and “reductions,” but belies the disparity between many states’ stringent abortion restrictions and the promotion of assisted reproductive technology, which has created at least one million unused fertilized human eggs subject to destruction. As a commentator at Oregon Right to Life has noted, “there’s no moral or even biological difference between those frozen embryos and those eventually born. If you implant them in a woman’s womb and let nature take its course, approximately 37 weeks later, the result is what is undeniably a human being. [Yet] we insist on ignoring this reality.”
Implications for civil liability
Civil liability for the death or injury of unborn children and “reproductive products”—sperm, eggs, and fertilized eggs—varies by state. All states permit pregnant women to bring personal injury claims for harm done to them that causes miscarriage. Most, but not all, states also permit parents-to-be to sue for the wrongful death of their unborn viable child, either on their own behalf, on behalf of the unborn viable child or both.
Maryland permits pregnant women to recover emotional distress damages for the death of unborn children, and Indiana permits expectant fathers and mothers to sue for emotional distress. Alabama is one of the few states that permit wrongful death lawsuits brought on behalf of pre-viable unborn children, and a trial court judge recently made headlines when he ruled that a legally aborted unborn child could bring a wrongful death lawsuit against the abortion clinic and drug company that manufactured the abortion drug. Ohio currently does not recognize wrongful death actions for the negligent destruction of eggs, sperm or embryos, but lawsuits brought by numerous would-be parents against a fertility storage facility are challenging that precedent.
The term “wrongful birth” is used to cover several situations, including “wrongful pregnancy” after failed sterilization or contraception, failure to diagnose pregnancy within the timeframe for a legal abortion, and failure to inform parents of a medical condition or deformity that would have led them to abort the fetus had they known of the defect. State laws are constantly changing regarding recognition of wrongful birth claims. In 2017, the Iowa Supreme Court joined “the majority of courts” that “allow parents to sue for the wrongful birth of a severely disabled child,” holding that [t]his theory fits within general tort principles for medical negligence actions.” On the other end of the spectrum, a Kansas court recently upheld a legislative prohibition of wrongful birth claims.
No state recognizes “wrongful life” claims brought by and on behalf of children against parents or medical providers for the pain and suffering caused by their very existence, but New Jersey and California recognize a limited wrongful life claim brought by a disabled child to recover the added medical and living expenses incurred because a health provider failed to diagnose a birth defect or serious medical condition when it was legally possible to terminate the pregnancy.
Custody disputes: property or persons?
Assisted reproductive technology (A.R.T.) forces courts and legislatures to determine whether sperm, eggs and “in vitro embryos” should be treated as property or persons or given “special respect status.” Most states apply contract and family (divorce) law principles to the disposition of “reproductive products.” In the absence of an enforceable contract, states balance the interests of the various parties, including sperm and egg donors and surrogate (gestational) mothers. In 2015, an Illinois court tipped the scales with regard to fertilized egg disposition in favor of the egg donor for whom they represented the “last clear chance” to procreate. Arizona recently enacted a divorce statute that requires custody of in vitro human embryos “to the spouse who intends to allow [them] to develop to birth.” Inheritance rights of posthumously “conceived” children also are impacted by state law definitions.
The last word
The legal and moral implications created by assisted reproductive technology are staggering. Medical professionals, judges, legislators and religious leaders are struggling to keep up with ever-evolving and increasingly more complex interests. There is serious disagreement at present on the legal rights of pregnant women, unborn children and human embryos, but accepting uniform definitions for reproductive terms could at least eliminate misconceptions and could build consensus on important peripheral issues—such as criminal and civil liability for violence against pregnant women that cause miscarriages and prenatal injuries and insurance coverage for reproductive assistance and contraception. If the beginning of wisdom is the definition of terms, this is a good place to start.
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