Frozen embryos, and babies kept on ice

[Scarberry, Mark]

Professor Tribe's response is right on the money. Allowing parents to keep
embryos on ice is an imposition on the embryo that we likely would not
ordinarily allow to be done to a post-birth baby; I think that suggests that
we have already culturally decided that embryos aren't persons. That
cultural decision may be right or it may be wrong, and it possibly could be
changed. And it does indicate *something* about our view of the embryos;
they are not (at least not yet) entitled to the protections we give persons.
What it does not indicate is that parents are free to do anything they
choose to do with the embryos, as Professor Tribe points out.

Even a right to kill something does not imply a right to treat it in any
manner whatever; a deer hunter with a license to kill a deer has no right to
intentionally torture the deer. The state has a right to incarcerate
burglars, but not a right to disfigure them. (I assume a punishment
involving the carving of a scarlet B on a burglar's forehead would be cruel
and unusual.)

Similarly, a constitutional, statutory, or common law right to put embryos
on ice for a time does not necessarily imply any kind of right to destroy
the embryos. I, too, would resist such an implication.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Laurence H. Tribe [mailto:tribe at LAW.HARVARD.EDU]
Sent: Thursday, September 28, 2000 2:20 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Frozen embryos, and babies kept on ice


I would resist the conclusion that, if parents are recognized as having a
right to put someone (something?) on ice, then it must follow that those
parents have a right to destroy him/her (it?). Perhaps Mark Scarberry is
correct that parents should not be recognized to have the former right; that
seems to me a question with its own complexities. But we recognize parental
rights to take fairly extreme steps with their own children, including
raising them in highly restricted environments and depriving them of what is
arguably important psychological stimulation, cf. Wisconsin v. Yoder,
without automatically buying into the even more extreme proposition that
parents have a right to terminate the lives of those children. -- Larry
Tribe.

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of
Mark.Scarberry at PEPPERDINE.EDU
Sent: Thursday, September 28, 2000 4:08 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Frozen embryos, and babies kept on ice


I suppose once we admit that the parents have a right to freeze the unused
embryos and hold them in reserve for the parents to decide later whether
they want more children, then we are allowing something to be done to them
that we would not ordinarily allow to be done to a person. Then it's not
surprising that we continue to allow them to be treated as things.

Would we allow parents to place babies into suspended animation, were that
medically feasible and safe, by freezing or other more exotic means? The
parents might say that they want to raise a child, but not until they are
more economically secure and emotionally mature. But they might not want to
wait to conceive and give birth to the child, because as the woman becomes
older (maybe also the man?) the risk of Downs' syndrome and of a difficult
pregnancy increase. Hypo: baby is frozen and then Child Protective Services
seeks custody to unfreeze the child? Or someone petitions the court for
appointment of a guardian ad litem for the child, and then the guardian sues
the parents for false imprisonment etc.

I don't think the parents have the right to keep a person on ice; if I'm
right then this perhaps this is relevant to suggest there is at least no
post birth right to control procreation.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: Safranek, Stephen [mailto:ssafranek at AVEMARIALAW.EDU]
Sent: Thursday, September 28, 2000 12:32 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: frozen embryos




Professor Hartnett is correct I think.  The cases have specifically spoken
about the right not to procreate precisely in the fashion he has outlined.
They have not spoken about the right to bodily integrity.


-----Original Message-----
From: Edward Hartnett [mailto:ehartnet at LAW.UPENN.EDU]
Sent: Thursday, September 28, 2000 2:56 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: frozen embryos


"Richards, Edward P." wrote:

> > How far are the frozen embryo cases that have already
> > been decided from Eugene's hypo or Larry Tribe's Brave
> > New World?
>
> Probably a long way at this point in time - they require implantation in a
> uterus and regular gestation, which triggers all the other bundles of
rights
> that the vat grown folks do not.  It could get interesting if the embryos
were
> made from anonymous eggs and sperm, since all the cases I know of depend
on the
> "parents" to get standing to bring the cases.  Without that tie into
previous
> law, the cases might get a lot more interesting.

----
But are that they far apart legally?  If a man and a woman agree to in vitro
fertilization, and agree ex ante that (upon later disagreement) either one
may keep
the embryo alive and have it implanted (either in the genetic mother or
another
willing woman), then judicial recognition of a right of one of them to
destroy the
embryo over the other's objection can't be based on a right to bodily
integrity,
but rather on a right not-to-procreate.  Moreover, it is a right
not-to-procreate
that extends to insisting on the death of the embryo.  Of course, one might
choose
to distinguish between an embryo and a fetus in determining the scope of a
right
not to procreate -- but the right remains based on non-procreation rather
than
bodily integrity.

Ed Hartnett