With the overturn of Roe and its emphasis on viability, “life begins at conception” has a chance of graduating from opinion to law in the form of fetal personhood legislation. This raises issues ranging from the ridiculous to the sublime. Ridiculous as in the abortion rights advocates’ fear-mongering about ectopic pregnancy; sublime as in the matter of “test tube babies.”
The Supreme Court declined to weigh in on fetal personhood in Dobbs. “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth,” wrote Justice Alito. Legislation concerning fetal personhood, however, has been introduced several times in Congress, most recently last year. The Life at Conception Act (H.R. 1011) would extend 14th Amendment protection to all unborn life: “This bill declares that the right to life guaranteed by the Constitution is vested in each human being at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual comes into being. Nothing in this bill shall be construed to authorize the prosecution of any woman for the death of her unborn child.”
While there is no longer a constitutional right to abortion, such a law could still be challenged for violating state constitutions, and, let’s face it, it could be a way to use Congress to enact a nationwide ban on abortion, which conflicts with the pro-life political stance that abortion law should be left up to the states. Of course, Nancy Pelosi’s Women’s Health Protection Act sought to establish a nationwide abortion mandate, but Democrats are often keen on one-size-fits-all solutions. It’s interesting to note that the Life at Conception Act includes cloning. To be so comprehensive suggests that it’s more than just an abortion-ban gimmick. Perhaps it aims to keep the white coats from having their creepy merry way with human embryos in laboratories?
The prospect of fetal personhood also has the fertility industry worried. A fundamental reason for its success here is that the United States has fewer limits on in vitro procedures—such as how many eggs may be fertilized and implanted at the same time—than many other countries. Before Roe was overturned, Nebraska was thought to be one of the states most likely to ban abortion. Not so, at least not for now as lawmakers there recently failed to pass a 12-week ban. But prior to this a measure defining life as beginning at fertilization had been under consideration in the state legislature. Elizabeth Constance, a doctor at the Heartland Center for Reproductive Medicine in Omaha, was quoted in a Washington Post story last May claiming the bill had “a very real potential to impact our ability to safely and effectively perform IVF procedures.” No, doc, enacting a state fetal personhood law would just mean you’d have to close up shop in Omaha and, along with your neighborhood abortion clinic, open up for business in another state. Geeeesh!
The subject of in vitro fertilization raises moral and humanistic questions, and opinions vary. Back in 1978, after the birth of Louise Brown, the world’s first “test-tube” baby, Israel’s Chief Sephardi Rabbi Ovadia Yosef ruled artificial insemination was halachically valid as long as there was no other way for the woman to become pregnant. But at the same time Ashkenazi Chief Rabbi Shlomo Goren said that although there was no halachic ban on the procedure, the practice was contrary to Jewish morality. Protestant theologian Karl Barth, the father of “neo-orthodoxy,” warned that artificial insemination would lead to a “dreadful, godless world” à la that depicted in Aldous Huxley’s Brave New World. In 1987, the Catholic Church’s Sacred Congregation for the Doctrine of the Faith issued Donum Vitae (The Gift of Life), which concluded that in vitro fertilization violates the dignity of the human person and the institution of marriage because it replaces sexual intercourse. More recently, however, the Pontifical Academy for Life (PAV) has implied that in some instances artificial procreation could be morally licit. In response to those who accused him of giving authority to theologians considered to be heterodox, Bishop Vincenzo Paglia, the president of the Academy, replied: “We rather wanted to bring together different opinions on very controversial topics, offering many points for discussion.” The Russian Orthodox Church has also announced (last year) that it is considering revisiting its negative stance on artificial conception.
One concern about test-tube baby technology impossible to ignore from a life-begins-at-conception standpoint regards “spare” embryos and what to do with them. Efficiency and success rate determine the fertility industry’s bottom line—spares or “extras” are labeled mere “products of conception,” the same term used for aborted-baby parts, and are to be discarded without thought. Or donated to “science.” Or, as is the case in our country, frozen indefinitely, because in many cases, the parents of the embryos don’t want to destroy them, even if they suspect they won’t be using them in the future. A couple with moral convictions, and a lot of money, can address this by making sure all their embryos are implanted. It’s more strain on the woman—who is likely already endured several cycles of fertility drugs to boost her egg production, and maybe miscarriages when the embryos failed implant and thrive—but ultimately, it’s her choice.
Perhaps, if there is a moral push to do so, legislation in the US can be brought in line with that of other countries, eliminating the problem of “leftover” embryos. The sticking point for many religious leaders, however, is their contention that using the test-tube baby process makes the child a product of technology instead of a gift from God, hence the indignity. A few also say that the process is tantamount to adultery, because the doctor is impregnating the wife, not the husband. Risking irreverence, it seems to me like a thousand angels on the head of a pin all gazing at their navels. Life is a precious thing to possess, no matter if it begins in a petri dish. To exist, to be here. That is the gift. Believe me.
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My mother had polio and was told she’d never have children. She had four. The first three were very easy, about 30 minutes labor each. I was number four and from the beginning she had a “bad feeling.”
In 1950 a disabled woman could get a legal abortion; all she had to say was “I don’t think I can handle it.” If her doctor had compunctions, there were others who didn’t. Her doctor had compunctions and talked her out of having an abortion. Her fears came true; she couldn’t push me out. The doctor told her, “You have to be brave and die for the baby.” Shocked, she cried out “No!” He picked up a syringe and moved towards her. “I want a policeman,” she screamed. A nurse knocked the needle out of his hand. Then he walked out, and another doctor took his place. Mom said she thought he was Greek, and uncommonly small for a man. “Save us both,” she told him. He told her she was risking her life. She said every woman risks her life. He said she would have to work very, very hard, and began a forceps extraction, pulling the baby out by the head. Almost always the baby was decapitated, a “late term abortion” circa 1950. But my mother had said “Save us both,” so he worked hard too. A nurse cried: “I see an arm!” The doctor hooked one finger under my armpit and completed the delivery. Happy mother, happy doctor, the nurses applauded. On my birth certificate the space for attending physician is blank.
I say my morning prayers when I walk to the corner to get the newspaper: This is the day the Lord has made, let us rejoice and be glad in it; the Our Father and the Hail Mary; Glory Be; Grace (I read in a novel it’s apropos at any time). I don’t say an Act of Contrition (c’mon! I just woke up!). Then I ask God to save babies today, as I was saved, for them to have life, as I’ve had life. I guess it’s what shrinks would call a “trigger,” but every time I say this, I get the same rush of feeling—what it means to be alive. The gamut. The high of finally getting something you’ve worked for; grief so deep your chest hurts (they don’t call it heartbreak for nothing). The simple bliss of feeling the sun on your face and smelling just-cut grass. Isn’t simply to be here precious? Isn’t being labeled a “product” an indignity?
(For an in-depth analysis of the Catholic Church’s position on in vitro fertilization as laid out in Donum Vitae, and the ways in which a recent book issued by the Pontifical Academy for Life challenge it, see “Going Beyond the Letter of the Law” by Gerhard Ludwig Müller and Stephan Kampowski, published by First Things on August 27, 2022.)