Wednesday, December 23, 2015

Frozen Embryos' Lessons

by Sherry F. Colb

In my column this week, I discuss frozen embryo battles and the different rights and perspectives in play when such fights cannot be resolved by an existing contract between the parties. In this post, I want to further explore a concept that arises briefly in the column:  the symbolic significance of calling an embryo a baby or of otherwise treating an embryo as something other than a potential child or the raw materials of a child.

Such nomenclature, when referring to an embryo or zygote, erases the important biological role that women play in reproduction and treats men and women as equally involved in producing a baby. Since there is in fact, more to reproduction than the contribution of gametes, a pretense that reproduction has already occurred once an embryo or a zygote has come into existence effectively denies the significance (and, in some ways, even the existence) of the unique role that women play in reproduction, through pregnancy.

I developed this idea of the denial inherent in calling a fertilized egg a child in an article entitled "Words that Deny, Devalue, and Punish:  Judicial Responses to Fetus-Envy," ("Fetus-Envy"), published in the B.U. Law Review in 1992, when many of DOL's readers were themselves still zygotes or embryos.  The article explored ways in which rhetoric (specifically judicial rhetoric, although such rhetoric extends well beyond the judiciary) functions to make women's unique contribution to reproduction invisible, to devalue women's contribution of nurturing, and to punish women for it (by excluding fertile women from the workplace, as the company Johnson Controls did).

The context in Fetus Envy in which a court characterized frozen embryos as children was when the court performed a "best interests of the child" inquiry to determine whether the egg donor or the sperm donor should get "custody" of the children.  Because the "mother" of the embryos would do a better job of taking care of them than the "father" (sperm donor) would, the court awarded them to the woman. Awarding embryos to the woman is not necessarily a sexist move, to be sure, but the reasoning and the use of "best interests" rhetoric about an entity that still lacks interests (since embryos are not yet capable of having a state of wellbeing--they are not sentient) is brimming with denial.  Women do not provide a better home for embryos than a man; they provide the only existing environment in which the embryos can become sentient human beings, and their contribution through pregnancy involves active and painful work.

But what if someone believes that embryos are full human beings because of their religion?  I suppose that one cannot effectively rebut a religious argument because it is generally not framed in falsifiable terms.  But the notion that a zygote or embryo is already a person is an interpretive move that some humans have made.  This is how religious people can explain that the Christian and Jewish Bible contains brutal atrocities seemingly condoned by God (such as slavery, the killing of captive prisoners of war, and the treatment of a conquered enemies' virgins as the spoils of war).  People are always the ones translating religious texts, and the particular people who have done so over time have typically been men, the category of humans who might like to view their own contribution to reproduction as equal to that of women (by disappearing pregnancy).

Just to ensure (or at least attempt to ensure) that I am not misunderstood, I am not meaning to say (nor did I mean to say in Fetus Envy) that all men are guilty of fetus-envy (denial, devaluation, and punishment of "women's work").  My goal was to elucidate a psychological phenomenon that I think explains some of the rhetorical moves that judges and others make, whether or not out of a commitment to the pro-life view of zygotes.  Not all men (and not only men) deploy this sort of rhetoric, and fetus-envy does not necessarily explain every instance in which the rhetoric arises.  Not unlike religious claims, my theory is not falsifiable.  But it rings true to me (and to many of the people I consulted about it in the early '90s).  But I acknowledge that, as Freud might say, sometimes a cigar is just a cigar.