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COPYRIGHT 2004 National Legal Center for the Medically Dependent & Disabled, Inc.
Abstract: This Article interprets the debate about abortion and the debate about embryonic research and therapeutic cloning as aspects of a larger history of ideas. The Article suggests that embryos increasingly stand for different truths in discourse about abortion on the one-hand and about embryonic stem cell research and therapeutic cloning on the other. More specifically, the Article suggests that the contemporary debate about the meaning of the embryo in the context both of abortion and of embryonic research bespeaks a widespread transformation in Western, and especially American, society during the last three or four decades. At base, that transformation involves displacement of an understanding of personhood, particularly in domestic settings that depended on the submersion of individualism with an understanding of personhood that values autonomous individuality and that envisions community as the consequence of individuals' distinct choices rather than as a pre-existing, hierarchically structured whole.
I. Introduction
Two debates, one about abortion and the other about embryonic stem cell Research (1) and therapeutic cloning, (2) are being conflated in social and legal discourse. The two debates resemble each other. Within each, society has fashioned a context for discourse that allows people to entertain and dispute the scope of personhood and the parameters of community. Moreover, public disagreement within each debate has focused around the meaning of the term embryo. (3)
Those similarities notwithstanding, this Article argues that a fundamental discontinuity distinguishes the two debates. The debate about abortion, framed in response to the needs and demands of the nineteenth and twentieth centuries, concerns the preservation of a world view that valued hierarchy, fixed roles, and communal solidarity more than equality and choice--a world view that had been relegated mostly to the domestic arena by the middle years of the nineteenth century. (4) The debate about embryonic stem cell research and therapeutic cloning raises novel questions about personhood. This debate is being framed in response to very different needs and demands than those that defined the central ideological debates of the two previous centuries. In part, the needs and demands of the present century are being constructed in response to society's expanding capacity to disseminate information and to alter biological structures and thus to redefine the essence of being human. In particular, the debate about embryonic research (in comparison with that about abortion) largely assumes autonomous individuality and then focuses on and assesses the nature of the autonomous individual. (5)
In order to disentangle the debate about abortion from that about research cloning and embryonic stem cell research, this Article analyzes the embryo-as-symbol and suggests that the panoply of meanings attributed to embryo serves to elide, or even disguise, the central concerns underlying the complicated, often volatile, and generally confusing debate about abortion and the emerging debate about embryonic research and cloning for the production of research embryos.
Both cloning and embryonic stem cell research have focused public attention on the meaning and status of human embryos in contexts essentially unrelated to abortion. As a result, society and the law have begun to construct new understandings of the term embryo. Those understandings merge with and reshape old understandings. Thus, the politics of abortion are being transformed as society responds to developments in molecular biology, especially the advent of mammalian cloning in 1997 (6) and the isolation of human embryonic stem cells a year later. (7)
Neither discourse about abortion nor discourse about cloning and embryonic stem cell research can adequately be interpreted apart from an underlying ideological shift in American society that became evident in the last decades of the twentieth century. (8) That broader underlying shift implicates the contours of personhood, family life, and community And in consequence, both debates (largely through interpretations of their shared central symbol, the embryo) serve as a pretext for entertaining broader disputes about underlying social goals and values.
The politics of abortion have reflected disagreements about the status of fetuses and embryos, and even more fundamentally, disagreements about a set of underlying issues that include the legitimacy of feminism, the importance of gender in understandings of personhood, the value of so-called traditional forms of relationship within the domestic sphere, and the implications of displacing those forms of relationship with others that assume autonomous individuality in place of communal solidarity. For pro-life adherents in particular, the politics of abortion further (and sometimes mask) a broad agenda concerned with preserving a model of family lire and understandings of personhood that developed in the early years of the Industrial Revolution. Similarly, the much more recent debate about embryonic stem cells and therapeutic cloning implicates understandings of personal identity and social relationships. It represents the swan song of an understanding of personhood that reflects the values of the Enlightenment and that bas served the needs of the Industrial Revolution. And it represents, as well, a new debate about personhood that assumes autonomous individuality even in familial settings.
This Article interprets the debate about abortion and the debate about embryonic research and therapeutic cloning as aspects of a larger history of ideas. The Article suggests that embryos increasingly stand for different truths in discourse about abortion on the one-hand and about embryonic stem cell research and therapeutic cloning on the other. More specifically, the Article suggests that the contemporary debate about the meaning of the embryo in the context both of abortion and of embryonic research bespeaks a widespread transformation in Western, and especially American, society during the last three or four decades. At base, that transformation involves displacement of an understanding of personhood, particularly in domestic settings that depended on the submersion of individualism with an understanding of personhood that values autonomous individuality and that envisions community as the consequence of individuals' distinct choices rather than as a pre-existing, hierarchically structured whole. (9)
Part II of this Article briefly presents the scope of the contemporary social and legal debate about embryonic research, including especially embryonic stem cell research and therapeutic cloning. Part III outlines the ideological history of the debate about abortion and then describes the socio-cultural and legal frameworks within which understandings of the term embryo have developed. It explores the central contentions that have defined the debate about abortion since the second hall of the twentieth century. This Part also suggests that pro-lire groups may sometimes elide their own essential ideological interests in the effort to forge political and legal strategies for opposing abortion. Part IV returns to the issues raised by research cloning and embryonic stem cell research. This Part summarizes responses of lawmakers to embryonic research. Part V analyzes the parameters of the ideological divide that separates the twentieth century debate about embryos in the context of abortion from that now unfolding in the context of therapeutic cloning and stem cell research. This Part suggests that shifting understandings of embryo symbolize broad changes in social understandings of personhood.
II. The Embryo In Science: Research Cloning And Embryonic Stem Cell Research
Developments in science and technology beginning in the last years of the twentieth century have generated a new notion of embryo that has, in turn, facilitated novel conceptions of reproduction, sexuality, health, and relationship. (10) This new embryo, unlike the embryo of the nineteenth and twentieth centuries, is formed outside the human body; it can be created either through joining sperm and egg in vitro (11) or through the transfer of somatic cells into denucleated ova; (12) it provides for reproduction apart from sexuality; (13) it promises salvation for people now suffering or likely to surfer from serious illness or disability; (14) and it is a source of potential wealth for the fledgling biotechnology industry and the related, though more established, pharmaceutical industry. (15) This new embryo represents unprecedented forms of human reproduction and relationship and suggests novel approaches to health care that stimulate dreams of greatly expanded lifespans and even of immortality. (16)
This Part describes the events that brought this new embryo into public consciousness. That happened dramatically in 1978 with the first successful use of in vitro fertilization to create a human baby. (17) This Part outlines relevant aspects of the development of reproductive technology after that time, the advent of somatic cell nuclear transfer in mammals in 1997, and the isolation of embryonic stem cells in 1998. (18) These developments have engendered the social construction of the new embryo. This notion of the embryo, in turn, has raised a host of moral conundrums and has spawned a widespread social and legal debate about the ontological status of embryonic lire that reflects aspects of the preexisting debate about abortion. (19)
That preexisting debate depended centrally on assertions about the status of the embryo and fetus. Many of those assertions, especially from pro-lire adherents, are being sorely challenged by society's increasing readiness to support and use contemporary developments in molecular biology and medicine. (20)
A. Reproductive Technology and In Vitro Fertilization
In 1978, Louise Brown, the first baby conceived outside a woman's body, (21) was born in Oldham, England. (22) Since that rime, reproductive technology bas provided, among other things, for cryopreserving gametes and embryos for years, possibly even for decades; (23) testing embryos for genetic flaws prior to implantation; (24) and transferring ova, produced in the body of one woman and fertilized in vitro, to the body of a second woman for gestation and birth. (25) Moreover, treatment for infertility has produced so-called spare embryos: that is, embryos produced in vitro and cryopreserved for future reproductive use but not in fact needed for that purpose. (26)
As a result of such developments, biological maternity has been separated into two different aspects (gestational and genetic), reproduction has been divorced from sexuality, and the presumed biological anchors through which families were once understood are being replaced with a variety of alternative truths about human reproduction. Each of these developments raises questions about the scope of family and the essence of personhood. And each raises new questions or re-frames old questions about the status of embryos. The phenomenon of spare embryos, in particular, suggests a new vision of the embryo and engenders a new debate about the use and status of embryonic matter.
Disputes occasioned by embryo cryopreservation have forced courts to delineate the appropriate disposition and to discuss the ontological status of four to eight cell frozen embryos. (27) Several legal cases have involved disputes between divorcing couples about the disposition of embryos frozen during treatment for infertility. (28) One case, Davis v. Davis, (29) decided in Tennessee in 1992, starkly suggests the law's confusion about embryos. The case developed out of a dispute between a divorcing couple about the disposition of seven frozen embryos produced from the husband's sperm and the wife's ova. Each of the three state courts that rendered decisions in the case characterized the ontological status of the disputed embryos differently from the other two. The trial court portrayed the embryos as children and vested temporary custody of the frozen embryos with the divorcing wife. (30) The intermediate appellate court understood the status of the embryos as resting somewhere between property and body organs. (31) And the state's highest court concluded that the embryos, while neither persons nor property, enjoyed a special status because of their potential for human lire. (32)
For the most part, courts, entertaining disputes about frozen embryos, have relied on contractual agreements to resolve such disputes, (33) or in the absence of such agreements, on the comparative interests of the parties. (34) However, a few state trial courts, including the trial court in Davis, have ascribed human status to frozen embryos. (35) Stored embryos have presented new questions to a legal system that assumed, at least since Roe v. Wade, (36) that embryos develop inside women's bodies. (37)
The Catholic Church has consistently opposed the use of reproductive technology on the ground that a child enjoys the right to be conceived by a married couple through sexual intercourse. (38) Yet, in the main, embryos produced in the context of infertility treatment have not engendered the sort of intense controversy about the status and rights of the embryo that has surrounded discussion of therapeutic cloning and embryonic stem cell research. (39) In part, the explanation is simply that ethical discourse surrounding reproductive technology has focused around a larger set of issues including, for instance, the implications of third-party participation in the reproductive process, (40) the commodification of reproduction, (41) the potential for racism and classism in the employment of surrogates, (42) and the consequences of assisted reproduction for conceptions of the family. (43) In addition, many who oppose the use of embryos in research are ready to ignore the destruction of embryos produced in vitro for reproductive purposes. (44) One commentator suggests that neither the Bush administration nor the religious right "wish[es] to confront sterile parents or hamper a multimillion-dollar industry." (45)
B. Cloning and Embryonic Stem Cell Research
About two decades after the birth of the first child conceived in vitro, scientists announced the development of another, significantly different method for creating human embryos outside the human body: somatic cell nuclear transfer or cloning. (46) In 1997, scientists in Ireland successfully cloned a lamb, whom they named Doll. (47) The technique used to create Dolly, developed by Ian Wilmut at the Roslin Institute in Scotland, involves removing the nucleus from an ovum and then merging the denucleated ovum with the nucleus of a somatic cell from the animal to be cloned. (48) Wilmut's laboratory used an adult sheep's mammary cell, though in theory any somatic cell could have been used (49) because each somatic cell contains the full complement of the nuclear DNA of the animal. (50) After the fertilized egg cell began to divide (51) it was implanted into the uterus of a sheep. That sheep gestated and gave birth to the lamb, Dolly. (52) Dolly carried the DNA of the sheep from which the mammary cell had come, not the DNA of the sheep that gestated and gave birth to Dolly. (53)
Responses to cloning were immediate and widespread. Within a day of Wilmut's announcement, President Clinton asked the National Bioethics Advisory Commission to study the ethical implications of cloning and make recommendations for appropriate federal responses. (54) That group issued a report that recommended congressional action prohibiting somatic cloning of a human for at least three to five years. (55)
Congress has not yet passed legislation regulating cloning. (56) For the most part, however, early responses to the advent of mammalian cloning focused on the implications of reproducing humans through use of the technique and did not focus on the implications of non-reproductive cloning for the creation of embryos to be used in research (described popularly as research or therapeutic cloning, (57) in contrast with reproductive cloning). (58)
The public began energetically to consider the implications of therapeutic cloning in 1998 when two groups of scientists in the United States isolated stem cells. One group, at the University of Wisconsin, isolated human embryonic stem cells. (59) Embryonic stem cells are derived from the inner mass of the embryo at the blastocyst stage (six to seven days after fertilization). (60) Simultaneously, scientists at Johns Hopkins University isolated human fetal germ stem cells (taken from fetuses). (61) The promise of embryonic stem cells (62) depends on their capacity to differentiate into each cell of the body and to proliferate indefinitely in vitro. (63) Thomas Okarma, President of Geron Corporation, described this promise at its grandest:
The potential for these cells is to allow permanent repair of failing organs by injecting healthy functional cells developed from them, an approach called regenerative medicine. The significance would be to broaden the definition of medical therapy from simply halting the progression of acute or chronic disease to include restoration of lost organ function.... Regenerative medicine would be a totally new value paradigm for clinical therapeutics. (64)
Research on embryonic stem cells depends on the availability of embryos. (65) Somatic cell nuclear transfer offers one source. In vitro fertilization is a second source. (66) For some who oppose embryonic stem cell research, all sources of human embryos for research are controversial. Recently, however, the use of cloning to obtain embryonic stem cells has been framed by legislative bodies, including Congress, (67) and by the public media reporting on legislative developments, as especially problematic. (68) Some who oppose research on embryonic stem cells have sketched disquieting visions of reproductive cloning and have suggested that research cloning will create a slippery slope leading to reproductive cloning and to a variety of related aberrations. (69) Others opposing cloning for research argue that any sort of cloning using human DNA is inherently anathema. (70) Such fears were fueled in early 2003, with the unsupported claim by Clonaid, a company founded by a religious sect called the Raelians, that it had successfully produced a human clone. (71)
Controversy about the production of embryos for research through cloning in particular, has galvanized strong social and legal responses (72) and has resulted in widespread confusion about the differences between non-reproductive cloning (73) and research on pluripotent stem cells. (74) Public media, lawmakers, social theorists, and the public at large have contributed to the confusion between non-reproductive cloning and stem cell research. (75)
The debate about cloning intensified in 1998 when Advanced Cell Technology, a Massachusetts biotechnology company, announced that it had fused a human somatic cell with a cow ovum. (76) This rendered the possibility of human cloning real and reinforced fears that cloning would eventually be used to produce unsettling chimeras such as a cow-person. (77) Yet, the stunning promise (78) (or hype, depending on perspective) of embryonic stem cell research (79) has galvanized a wide set of responses favoring cloning for research. (80) In the few years since the isolation of embryonic stem ceLls in 1998, (81) Congress (82) and state legislatures (83) have entertained a variety of bills aimed at banning or regulating human cloning, several bioethics bodies have released reports on cloning and/or on stem cell research, (84) and a wide variety of public interest groups have become active in the debate, variously favoring or condemning cloning and embryonic research. (85)
The promise of embryonic stem cell research may not be fulfilled for many years, or at all. (86) But the possibilities of treatments and cures for fatal illnesses and debilitating disabilities, as well as the enormous sums of money likely to flow to the biotechnology and pharmaceutical industries if the promise of the research is actualized, have stimulated public and governmental support for therapeutic cloning and embryonic stem cell research. (87) A fairly effective pro-research campaign was constructed in the face of strong opposition from an alliance of pro-life adherents and others, largely drawn from the camp of neo-conservatives, who oppose cloning because it "dehumanizes human life." (88) In the resulting controversy, old social and political alliances are being readjusted, underlying agendas are being unmasked and realigned, and the embryo-as-symbol is being reconstructed.
III. At Stake In The Debate About Abortion: Embryos And Beyond
The politics of abortion have molded the concerns and temper of the debate about embryonic research. Thus, in order to understand public responses to embryonic research and cloning for the production of research embryos, it is necessary first to understand the history of ideas that shaped the politics of abortion (89) during the nineteenth and twentieth centuries. Exploration of that ideological history suggests a significant irony at the heart of the debate about abortion.
That debate developed during the middle years of the nineteenth century. >From the start, it more or less openly paralleled a larger debate about the meaning of family and the scope of family relationships. Although the right to abortion was not a central principal of the feminist movement until the second half of the twentieth century, (90) those who opposed abortion in the nineteenth century (and later) also strongly tended to favor the preservation of distinct gender roles and to view woman as the preserver of hearth and home--as suited by nature to serve her husband and to care for their children. (91) In the late twentieth century, especially in the years surrounding Roe v. Wade, (92) that correlation became explicit. By the last decades of the twentieth century, however, as the American family almost visibly jettisoned the incidents of traditional domestic life, those who opposed abortion relied increasingly on arguments that stressed the sanctity of fetal and embryonic life. Concomitantly, they relied less often, at least in public debate, on arguments about the sanctity of traditional family life. (93)
The attribution of personhood to embryos occurred only in the middle of the nineteenth century. (94) But most of those who actively participated in the right-to-life movement in the aftermath of Roe simply assumed that embryos were children and that abortion was murder. (95) This assumption did not become the central tenet of the right-to-life movement, eclipsing rhetoric about family life (including rhetoric about the importance of preserving gender differences), until the last decades of the twentieth century. By then, a majority of Americans were, in fact, living in families that no longer reflected traditional understandings of the domestic arena. (96) And so, by this time, pro-life adherents were compelled, as a practical matter, to seek alternative modes of furthering their cause. Developing a platform that emphasized the morality of safeguarding embryonic life (rather than the morality of safeguarding traditional family life) served the movement well.
This Part delineates the ideological contours of the debate about abortion, and situates that debate within its wider ideological history--one concerned with the scope of the family arena, the comparative significance of autonomous individuality and of community, the role and status of women, and the meaning of personhood. This Part suggests that the debate about abortion during the nineteenth and twentieth centuries reflected shifting understandings of personhood and family life that developed during the same period.
A. "Abortion Politics" in the Nineteenth and Early Twentieth Centuries
In the United States, abortion was not widely criminalized until the second half of the nineteenth century. (97) Before the Civil War, abortion was supported by custom and public policy. (98) Under common law, abortion was not a crime until quickening, the stage of pregnancy at which a woman first felt fetal movements (generally the first half of the second trimester). (99) The politics of abortion developed as part of a broad set of social movements that aimed variously to oppose gender equality, sexual freedom, and the displacement of faith by modern rationalism.
1. The Concept of Fetal Life
The sanctification of fetal life was part of that opposition from the middle of the nineteenth century, although it did not become the essential tenet of pro-life groups for over a century. After the Civil War, a variety of voices--all supportive of the nascent movement to criminalize abortion--proclaimed the sanctity of fetal life. In 1869, Pope Plus IX rejected the Augustinian view that ensoulment occurs at forty days after conception, (100) and proclaimed that a fetus gains a soul (and thus becomes a full person) at conception. (101) After this proclamation, the Church classified all abortions as murder. (102) In the same year, a council of bishops, meeting in Baltimore, condemned abortion. (103) Abortion, in the council's view, was no different than "the killing of a child after birth." (104)
The Church's strong public position about abortion served as a condemnation of modern rationalism, inducing the rejection of faith. (105) For the Church, opposing abortion was part of a more general opposition to modernization. At stake was the future of a venerable universe of power and belief. That universe was grounded in faith; it prized hierarchy and status and it frowned upon autonomous choice for almost everyone. For the Church, the controversy over abortion became, in effect, a last stand in a larger battle to safeguard a vanishing world of social privilege, political power, and religious faith.
During the same years that the Catholic Church publicized its new position about the status of fetal life, American physicians developed a similar position from the perspective of science rather than religion. They laid the groundwork for a popular vision of fetus-as-child, premised not on faith, but on fact. (106) The nineteenth-century medical community was motivated by interests beyond those of science. The community hoped to upgrade the status of the profession, and toward that end, to eliminate competition from alternative healthcare practitioners. (107) By defining fetuses as people, the profession laid claim to an exclusive ability to treat pregnant women, which helped define physicians as better trained and more capable than alternative practitioners of the day. (108) Thus, nineteenth-century physicians provided scientific backing for claims about the moral status of the fetus. (109) A century later, these claims were incorporated at the center of the ideological platform of the pro-life movement. (110)
Dr. Hugh Hodge, a medical school professor at the University of Pennsylvania, played an important role in the nineteenth-century effort. He excoriated abortion on the ground that the fetus was a thinking, moral being. (111) Hodge described the fetus as an "independent being" with "independent powers." (112) A couple of decades later, Dr. Stephen Tracy substantiated the claim that the fetus is a "human being" by recording the knowledge of "well-informed medical men": (113)
At forty-five days, the form of the child is very distinct, and it is not termed a fetus. The head is very large; the eyes, mouth, and nose are to be distinguished; the hands and arms are in the middle of its length, fingers distinct ... at two months, all the parts of the child are present ... the fingers and toes are distinct. At three months, the heart pulsates strongly, and the principal vessels carry red blood. (114)
In the same year (1869) that Plus IX proclaimed the personhood of fetuses, Hodge published Foeticide, or Criminal Abortion. (115) There, he summarized his medical assessment of the fetus' ontological status as a full person.
The convergence of religious and scientific authority with regard to fetal status significantly strengthened the movement to outlaw abortion in the nineteenth century. However, at that time, the ontological status of the fetus was one among a wide set of concerns and assertions publicized by abortion opponents.
2. Abortion, Gender, and Families
Nineteenth-century abortion opponents constructed the notion of the embryo-as-person, but their agenda was grounded in a vision of traditional family life and gender roles. (116) "The true wife," explained Dr. Horatio R. Storer, a leader of the physician's campaign against abortion, rejected "undue power in public life ... [and] undue control in domestic affairs ... [as] privileges not her own." (117)
Anti-abortion rhetoric included express warnings about the dissolution of family life. Abortion became synonymous with the failure of women to effect their natural duties as wives and mothers. (118) The very notion of abortion provided a powerful, negative symbol of independent women-of both the prostitute who stood outside family life and the wife who stood inside but rejected the sacred demands of moral decency. Abortion symbolized the threat of sexual excesses, and in this vein, it stood for the desecration of sacred truth and the destruction of public morality. (119) It symbolized efforts to undermine a domestic sphere populated by loving mothers, presumed to care selflessly for their treasured children, (120) and wives, expected to provide sanctuary to their presumptively beleaguered husbands, viewed as returning each evening from the hardships of the marketplace to the comfort of home. (121) Such images suggested that women who failed to fulfill their proper role within the domestic arena threatened the backbone of social and economic life. Opposition to abortion reaffirmed that view. (122)
But nineteenth-century responses to abortion were not uniform. Opinions about abortion reflected tensions at the center of the ideology of traditional family life. Not everyone viewed abortion with disgust. For some, abortion and contraception represented a new, positive vision of independence within the home because these options provided for reproductive choice within the context of affective marriage. (123) This vision indicates that the modernization of family life began, not in the 1960s (when it became manifest), but over a century earlier. (124)
Whatever nineteenth-century Americans believed about abortion and contraception, family size declined sharply during the century Birth rates fell dramatically, from about seven children to a family at the start of the century to less than four at the century's end. (125) The decrease was not due to external disasters such as famine or war. (126) Rather, it was a product of parental choice and was effected through use of contraception and abortion. (127) By the middle of the nineteenth century, abortion, once practiced largely by desperate women (motivated by poverty or guilt about the consequences of extra-marital sexuality), became important as a practical matter to a new community of women. (128) White, middle-class women, not driven by the pressures of poverty or by fears of being revealed as sinful, sought abortion in order to preserve (or more accurately, perhaps, to create) families that reflected the nineteenth-century ideal of two parents, living together with their cherished (and chosen) children. (129)
Thus in the nineteenth century, with the so-called traditional family still...
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