Re: [asa] The unexpected burden of IVF

This is tricky. It is true that state laws can usually offer more
protection than the minimum stated in the U.S. Constitution, *unless* the
state law otherwise impinges on rights guaranteed by the Constitution. So,
if federal courts were to consider frozen embryos a sort of "property" for
purposes of the Fourteenth Amendment, a state law that considered them
"persons" or "potential persons" might well be unconstitutional if it unduly
impinged on the right of the "owner" of the embryo to dispose of it. This
is another, significant reason I don't like the utilitarian approach to
frozen embryos -- the more we move towards embryos as a form of "property,"
the less likely is is that legislation concerning their disposition will
survive a due process challenge.

In my view, it doesn't help much here to try to figure out the original
intent of the framers / ratifiers. If we really want to know their original
intent concerning "persons," we'd have to exclude blacks and women for many
purposes. And I don't think there's any plausible argument that they were
thinking deeply at all about fetuses when using the word "persons," much
less about frozen embryos. So, I tend to think that this particular
discussion on the policy side is a national one and that it has to be based
at a broad level.

On 9/6/07, philtill@aol.com <philtill@aol.com> wrote:
>
> You are right! Very confused.
>
> This is not discussed in the article, of course, but my opinion is that
> the use of the term "persons" in the Constitution was never meant by its
> framers (or by those who ratified it) to define the limits of what life can
> be protected by the states. I don't see our Constitution addressing this
> issue at all, and so I think it should have been left to state legislatures
> or state constitutions to decide. Then, at least within each state there
> could have been the possibility of a coherent policy.
>
>
> Phil
>
>
>
> -----Original Message-----
> From: Jack <drsyme@cablespeed.com>
> To: asa@calvin.edu; philtill@aol.com
> Sent: Thu, 6 Sep 2007 10:58 pm
> Subject: Re: [asa] The unexpected burden of IVF
>
> You brought up the constitution. Did you read the article that I
> linked? Here is a quote from that article regarding the jurisprudence of
> this topic:
>
> "It should be noted that the confusion felt by parents is shared by the
> minds who guide American jurisprudence. As University of Wisconsin law
> professor and bioethicist Alta Charo pointed out at the 2005 asrm meeting,
> the embryo issue tends to emerge as a point of dispute in divorce cases.
> Tracing the confused path of judicial decision-making, Charo offered one
> situation in which a Tennessee court ruled frozen embryos to be potential
> children, or effectively so, and—in the court's traditional role of acting
> in the best interests of children in custody suits–awarded a batch of
> disputed embryos to the parent who intended to bring them to term. That
> decision was reversed by a second court, which chose to treat the embryos as
> property and proposed dividing them, like furniture, between the ex-spouses.
> But the state's Supreme Court ultimately awarded the embryos to the spouse
> who did not intend to use them. In general, Charo said, courts tend to this
> latter approach: They take pains to avoid situations where one person will
> bring the embryos to term against the wishes of the ex-partner, privileging
> the right not to procreate over the desire to do so."
>
> lol, this is an example of how confused we are as a society about this.
>
> ----- Original Message -----
> *From:* philtill@aol.com
> *To:* drsyme@cablespeed.com ; asa@calvin.edu
> *Sent:* Thursday, September 06, 2007 6:51 PM
> *Subject:* Re: [asa] The unexpected burden of IVF
>
>
>
> David O's view that because they are potentially people they are people.
>
> I'm not sure the word "people" (or "persons" as used in the constitution)
> is the best word for bringing clarity to this discussion. Being
> a "person" seems to imply being conscious, so that consciousness would be
> the essential thing and then embryos may be disposable. But have we
> really agreed on that? Is a person really less of a person during the time
> that they are temporarily unconscious, say if they get knocked on the head
> by a baseball?
>
> I prefer to discuss this in terms of "the spectrum of human life." There
> is no question that an embryo is a form of life. And there is no question
> that it is _human_ life rather than dolphin life or cat life. So it is
> unquestionably a part of the spectrum of life that we call "human life." I
> think this formulation gives clarity to the real issue. The issue is
> whether or not mankind has the moral authority in this universe to parse up
> the spectrum of human life, declaring some of its segments to be sacred and
> others to be disposable. We can't really find a clear place to parse that
> spectrum, and even if we could, the issue is whether or not we have the
> moral authority to do so.
>
> So I agree with David's conclusion but I would avoid the nebulous and
> irrelevant term "person".
>
> Phil
>
> ------------------------------
> Email and AIM finally together. You've gotta check out free AOL Mail<http://o.aolcdn.com/cdn.webmail.aol.com/mailtour/aol/en-us/index.htm?ncid=AOLAOF00020000000970>
> !
>
>
>

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Received on Fri Sep 7 08:55:49 2007