vexation of viability uhsa

The Vexation of Viability: Arbitrary or The Vexation of Viability: Arbitrary or Valid?Valid? (Legal and Ethical Issues in (Legal and Ethical Issues in

Assisted Reproductive Technologies)Assisted Reproductive Technologies)

Linda MacDonald Linda MacDonald

GlennGlennUniversity Health University Health Sciences Antigua Sciences Antigua

Health Care Ethics and Health Care Ethics and LawLaw

Linda MacDonald Glenn2

Linda MacDonald Glenn, JD, LLMLinda MacDonald Glenn, JD, LLM

Assistant Adjunct Professor, University of Vermont, Assistant Adjunct Professor, University of Vermont, School of Nursing and Allied Health Sciences and School of Nursing and Allied Health Sciences and Alden March Bioethics Institute, Albany Medical Alden March Bioethics Institute, Albany Medical CenterCenter

Former Senior Fellow, Institute for Ethics, American Former Senior Fellow, Institute for Ethics, American Medical Association.*Medical Association.*

LL.M. in Biomedical Ethics from McGill University, LL.M. in Biomedical Ethics from McGill University, Montreal, CanadaMontreal, Canada

Biotechnology at the Margins of Personhood: An Biotechnology at the Margins of Personhood: An Evolving Legal Paradigm Evolving Legal Paradigm in the Journal of Evolution and in the Journal of Evolution and Technology, Vol. 13, Mar 2003, available at Technology, Vol. 13, Mar 2003, available at www.jetpress.org

In a former life, trial lawyer and advocate.In a former life, trial lawyer and advocate.


Purposes of PresentationPurposes of Presentation

Current developments in Current developments in biotechnology and assisted biotechnology and assisted reproductive technologiesreproductive technologies

Ethical and legal considerations Ethical and legal considerations Developments in the lawDevelopments in the lawLegal and ethical implicationsLegal and ethical implications


Part 1 – Part 1 – Current developments Current developments in biotechnology and assisted in biotechnology and assisted

reproductive technologies (ARTs)reproductive technologies (ARTs)


A reproductive history A reproductive history

1677:1677: Human sperm discovered by student of Antonij van Human sperm discovered by student of Antonij van Leeuwenhoek, inventor of the microscope. Leeuwenhoek, inventor of the microscope.

1780: 1780: Italian priest and scientist Lazzaro Spallanzani Italian priest and scientist Lazzaro Spallanzani develops first artificial insemination techniques using dogs. develops first artificial insemination techniques using dogs.

1785:1785: Scottish surgeon John Hunter attempts first human Scottish surgeon John Hunter attempts first human artificial insemination, resulting in birth of a child same year. artificial insemination, resulting in birth of a child same year.

1827:1827: Human female egg discovered by Prussian Human female egg discovered by Prussian embryologist Karl Ernst von Baer. embryologist Karl Ernst von Baer.

1843:1843: Physician Martin Berry discovers that fertilization Physician Martin Berry discovers that fertilization begins when sperm enters ovumbegins when sperm enters ovum. .


Reproductive history, continuedReproductive history, continued

1890:1890: Walter Heape of England conducts successful Walter Heape of England conducts successful “embryo flushing”, then transferring a rabbit embryo to “embryo flushing”, then transferring a rabbit embryo to foster-mother where normal development continues. foster-mother where normal development continues.

1960:1960: FDA approves sale of Enovid, first commercial birth FDA approves sale of Enovid, first commercial birth control pill. control pill.

1969:1969: Robert Edwards of England successfully fertilizes Robert Edwards of England successfully fertilizes human egg outside female body. human egg outside female body.

1978:1978: Louise Brown, the original "test-tube baby," is born Louise Brown, the original "test-tube baby," is born in Cambridge, England. in Cambridge, England.

1981:1981: First fish – a golden carp – is cloned in China. First fish – a golden carp – is cloned in China.


Reproductive history continued…Reproductive history continued…

1996:1996: First adult mammal a female sheep named Dolly is First adult mammal a female sheep named Dolly is cloned in Scotland. cloned in Scotland.

1997:1997: Japanese scientists announce they have sustained a Japanese scientists announce they have sustained a goat fetus for several weeks in a artificial wombgoat fetus for several weeks in a artificial womb

19991999: Fertility experts in England declare male pregnancy : Fertility experts in England declare male pregnancy theoretically possible. (IVF techniques can be used to theoretically possible. (IVF techniques can be used to induce an ectopic pregnancy by implanting an embryo and induce an ectopic pregnancy by implanting an embryo and placenta into the abdominal cavity, just under the placenta into the abdominal cavity, just under the peritoneum – delivery through Caesarean section)peritoneum – delivery through Caesarean section)

2000 – POP! 2000 – POP! www.malepregnancy.com appears on appears on WWWWWW


Reproductive history continued…Reproductive history continued…

2001:2001: Advanced Cell Technology announces Advanced Cell Technology announces cloning of human embryos. cloning of human embryos.

20022002: : Dr. Hung-Ching Liu of the Weill Medical Dr. Hung-Ching Liu of the Weill Medical College at Cornell University announces she has College at Cornell University announces she has gestated embryo for six days in artificial womb.gestated embryo for six days in artificial womb.


The Advent of Ectogenesis and/or the The Advent of Ectogenesis and/or the Artificial Womb!Artificial Womb!


Implications of Creating Artificial Implications of Creating Artificial Wombs and new ARTsWombs and new ARTs

Further advances in ARTs could result, in new Further advances in ARTs could result, in new survival rates for premature babies;survival rates for premature babies;

An incubator capable of preserving a 10-week-old An incubator capable of preserving a 10-week-old fetus might be capable of handling a one-week-old fetus might be capable of handling a one-week-old embryo. embryo.

Following fertilization in a petri dish, a growing Following fertilization in a petri dish, a growing embryo might be placed directly into the artificial embryo might be placed directly into the artificial womb. womb.

Could also result in a Could also result in a new definition of new definition of “viability”“viability”!!


Part 2 – Ethical and Legal Part 2 – Ethical and Legal ConsiderationsConsiderations


Some Historical Perspectives the Moral Status of the Some Historical Perspectives the Moral Status of the

Embryo,Viability, and PersonhoodEmbryo,Viability, and Personhood

In the middle ages, a fetus was not considered alive until In the middle ages, a fetus was not considered alive until “the quickening” “the quickening”

Saints Thomas Aquinas and Augustine did not see early Saints Thomas Aquinas and Augustine did not see early fetus or embryos as persons. fetus or embryos as persons.

Not until 17Not until 17thth century, when scientists thought they saw a century, when scientists thought they saw a “tiny man” under the microscope did the Church take the “tiny man” under the microscope did the Church take the position that life starts at conception.position that life starts at conception.

The Church never returned to earlier positionThe Church never returned to earlier position


Historical Perspectives continued…Historical Perspectives continued…

Spectrum of beliefs about when life, moral Spectrum of beliefs about when life, moral status, and personhood begins:status, and personhood begins:– From fertilization From fertilization (religious groups say “conception”)(religious groups say “conception”)

– From implantationFrom implantation– From 14 days after fertilization (primitive From 14 days after fertilization (primitive

streak and twinning)streak and twinning)


Historical Perspectives continued…Historical Perspectives continued…

““Brain birth," analogous to brain death at the other Brain birth," analogous to brain death at the other end of life. end of life.

““Viability” - capable of surviving outside the Viability” - capable of surviving outside the mother's wombmother's womb

Actual birth – not until the child is bornActual birth – not until the child is born Beyond birth – high standard for personhood Beyond birth – high standard for personhood


Joseph Fletcher’s 15 Propositions for Joseph Fletcher’s 15 Propositions for PersonhoodPersonhood

1. minimum intelligence,1. minimum intelligence, 2. self-awareness, 2. self-awareness, 3. self-control3. self-control 4. a sense of time4. a sense of time 5. a sense of futurity5. a sense of futurity 6. a sense of the past6. a sense of the past 7. the capability of 7. the capability of

relating to others,relating to others,

8. concern for others,8. concern for others, 9. communication 9. communication 10. control of existence10. control of existence 11. curiosity, 11. curiosity, 12. change and 12. change and

changeabilitychangeability 13. balance of rationality 13. balance of rationality

and feeling,and feeling, 14. idiosyncrasy 14. idiosyncrasy 15. neocortical 15. neocortical

functioningfunctioning


Part 3 – Developments in US Part 3 – Developments in US LawLaw


US case law…US case law…

American case law has been grappling with the question of American case law has been grappling with the question of fetal and embryonic life for over a hundred years;fetal and embryonic life for over a hundred years;

Dietrich v. Inhabitants of NorthamptonDietrich v. Inhabitants of Northampton, Supreme Court of , Supreme Court of Massachusetts, 1884 Massachusetts, 1884

Prior to 1973, many states outlawed abortion after Prior to 1973, many states outlawed abortion after “quickening”“quickening”

1973 – 1973 – Roe v. WadeRoe v. Wade excludes 1excludes 1stst and 2 and 2ndnd term fetuses as term fetuses as “persons” under statutory or constitutional protection,“persons” under statutory or constitutional protection, citing citing viabilityviability as the drawing line between appendage and as the drawing line between appendage and personperson..


US case law continued…US case law continued…

1989 – 1989 – Webster v. Reproductive Health ServicesWebster v. Reproductive Health Services – – majority from 7-2, down to 5-4, with court majority from 7-2, down to 5-4, with court indicating willingness to overturn indicating willingness to overturn Roe v. WadeRoe v. Wade

1992 – 1992 – Planned Parenthood of Southeastern Planned Parenthood of Southeastern Pennsylvania v. Casey, Governor of PennsylvaniaPennsylvania v. Casey, Governor of Pennsylvania



2000 – 2000 – Stenberg v. Carhart – Stenberg v. Carhart – Viability is not the Viability is not the issue; unconstitutional because of lack of issue; unconstitutional because of lack of exception to preserve the exception to preserve the healthhealth (not just (not just life)life) of of the mother. the mother.

Court’s decision can be likened to Judith Jarvis Court’s decision can be likened to Judith Jarvis Thomson’s “In Defense of Abortion” (case Thomson’s “In Defense of Abortion” (case scenario of unconscious violinist) - you cannot scenario of unconscious violinist) - you cannot force someone to sacrifice their health or life. force someone to sacrifice their health or life.


US case law, continued…US case law, continued… Thomson offers an analogy: imagine that youThomson offers an analogy: imagine that you

were knocked unconscious, hooked up to awere knocked unconscious, hooked up to afamous violinist who must depend on you forfamous violinist who must depend on you forlife support for the coming nine months.life support for the coming nine months.

Thomson maintains that you would beThomson maintains that you would bemmorally justified in unhooking yourself, even iforally justified in unhooking yourself, even ifit resulted in the death of the violinist.it resulted in the death of the violinist.

By analogy, a pregnant woman is justified inBy analogy, a pregnant woman is justified in“unhooking” herself from the fetus, even if“unhooking” herself from the fetus, even ifdoing so results in the death of the fetus anddoing so results in the death of the fetus andeven if the fetus is a person.even if the fetus is a person.



In sum, Judith Jarvis Thomson’s argument against In sum, Judith Jarvis Thomson’s argument against restrictive regulation of abortion rests on three ideas:restrictive regulation of abortion rests on three ideas:

First, restrictive regulation severely constrains women's First, restrictive regulation severely constrains women's liberty. liberty.

Second, severe constraints on liberty may not be imposed Second, severe constraints on liberty may not be imposed in the name of considerations that the constrained are not in the name of considerations that the constrained are not unreasonable in rejecting. unreasonable in rejecting.

Third, the many women who reject the claim that the fetus Third, the many women who reject the claim that the fetus has a right to life from the moment of conception are not has a right to life from the moment of conception are not unreasonable in doing so.unreasonable in doing so.


US case law, continued US case law, continued

From property to quasi-property to quasi-From property to quasi-property to quasi-personhood?personhood?

Frozen embryos cases:Frozen embryos cases:

Davis v. Davis (Tennessee)Davis v. Davis (Tennessee)

A.Z. v. B.Z. (Massachusetts)A.Z. v. B.Z. (Massachusetts)

J.B. v. M.B. (New Jersey) J.B. v. M.B. (New Jersey)


US law continued …US law continued …

Legislation:Legislation: ““Unborn victims of crime act”Unborn victims of crime act” Another attempt to ban so called “partial-Another attempt to ban so called “partial-

birth” abortion, with no health exception.birth” abortion, with no health exception.


Part 4 - Legal and Ethical Part 4 - Legal and Ethical ImplicationsImplications


Legal and Ethical ImplicationsLegal and Ethical Implications

Further advances in ARTs, particularly the advent Further advances in ARTs, particularly the advent of the artificial womb, will force us to re-evaluate of the artificial womb, will force us to re-evaluate the difficult issues of when life and personhood the difficult issues of when life and personhood begins and the moral status of the fetus and embryo.begins and the moral status of the fetus and embryo.

These advances will likely re-define the abortion These advances will likely re-define the abortion debate* and make debate* and make Roe v. WadeRoe v. Wade moot. moot.

* * One can always hope that this could this lead to an agreement that transcends the One can always hope that this could this lead to an agreement that transcends the

abortion debate?abortion debate?


Legal and Ethical ImplicationsLegal and Ethical Implications

As assisted reproductive technologies As assisted reproductive technologies advance, the courts will determine where advance, the courts will determine where these beings fall on the property – quasi-these beings fall on the property – quasi-property – quasi-person – personhood property – quasi-person – personhood continuumcontinuum. .


For the future:For the future:

Expect intense cross-Expect intense cross-disciplinary debate, disciplinary debate,

discussion, as new assisted discussion, as new assisted reproductive technologies reproductive technologies

appear.appear.


Thank you for attention!Thank you for attention!

For Bibliography and References feel For Bibliography and References feel free to contact me at:free to contact me at:

[email protected]@biomedlaw.com


Future case scenarioFuture case scenario

Mr. and Mrs. D came into a fertility clinic; they have Mr. and Mrs. D came into a fertility clinic; they have several embryos frozen for future use, to be implanted into several embryos frozen for future use, to be implanted into either the husband (a male pregnancy) or an artificial either the husband (a male pregnancy) or an artificial womb; both husband and wife agree that in the event of womb; both husband and wife agree that in the event of death or divorce, the embryos may be donated to another death or divorce, the embryos may be donated to another couple or used for research. Several years later, the couple or used for research. Several years later, the artificial womb or male pregnancy technology is perfected, artificial womb or male pregnancy technology is perfected, but the couple divorces ...but the couple divorces ...

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