by Sherry Colb

In my Verdict column for this week, I discuss a phenomenon in which pro-life advocates have been providing support in custody battles over frozen embryos to the side of the battles that seeks implantation (and thus a full "life") for the embryos.  My column contends that unlike in abortion-related battles, there is something very clean and uncontroversial about a fight for frozen embryos on pro-life grounds:  if one truly believes that a one-celled zygote is as entitled to live as a newborn baby, then a custody battle over an embryo in which one side seeks to kill the embryo and the other seeks to give it life through implantation is a ridiculously easy battle. Of course the side wanting implantation ought to win, because the "best interests of the child" (the appropriate standard if one is in fact dealing with a child) lies with the parent who will provide the child with a safe and nurturing environment for growth and development rather than a garbage pail. As I mention in the column, referencing my other writing, I do not share the view that an embryo has an interest in implantation, but that is because I reject the fundamental premise of the pro-life vision of conception as endowing a conceptus with rights. If I accepted the premise, however, I would share the view of frozen embryo disputes, because there is no competing right to bodily integrity weighing on the other side, as there is in abortion disputes.

Similarly, I have spoken in other contexts about the viability line in abortion jurisprudence as a sensible one, despite the Supreme Court's failure to adequately defend it. At viability, I propose, a woman's bodily integrity interest may be fully protected (at least in theory) without terminating the life of the fetus, by safely removing the viable fetus from the woman's body. Prior to viability, by contrast, a woman's right to terminate her internal invasion may be accomplished only at the collateral cost of killing the fetus, so the right to abortion may, for that reason, appear to grant an entitlement on the part of a woman to procure the death of a fetus (even a sentient fetus). Viability, then, by severing bodily integrity from the need to kill a fetus, clarifies the nature and scope of the right at issue -- it is one about bodily integrity and not an interest in terminating the life of a fetus.

In the frozen embryo context, we have the possibility of another viability line, this one at an extremely early stage of embryonic development rather than at a relatively late stage of fetal progression. As in the later viability situation, someone arguing on behalf of a frozen embryo can say that the embryo is "viable" in the sense that it can survive without the conscription of an unwilling womb in its service. Indeed, it can survive for some period of time without any womb (although it will eventually decay if it is not defrosted and implanted). The viability of a frozen embryo is distinct from the viability of a late-term fetus in some ways, of course -- the latter can live without being inside any womb and the latter has also reached a developmental stage at which many more people would regard it as having rights (perhaps because it has by now become sentient). Still, the viability line can work for the pro-life advocate in some of the same ways in both contexts:  the pro-life advocate can say, honestly, that if the abortion right is truly about bodily integrity rather than an interest in procuring the death of an unwanted embryo or fetus, then the frozen embryo should be treated with respect and accordingly be bestowed on the party that would implant that embryo. The frozen embryo is accordingly viable because it can procure what it needs to survive without imposing on anyone's bodily integrity, and as such, it may perhaps be entitled to do so.  In any event, if it is not entitled to implantation in a willing woman, that must be because we directly challenge and reject the idea that it is indeed a rights-bearing entity.  That must be, in other words, because we believe that viability is relevant only late in pregnancy, when an entitled entity has already developed, perhaps because that entity has become sentient, as Michael Dorf and I argue in our new book, Beating Hearts:  Abortion and Animal Rights.