Embryos, injuries, and damages

The demagoguery surrounding last week’s Alabama Supreme Court ruling involving in vitro fertilization (IVF)—incendiary rhetoric being pushed by Democrats to stoke a new fear while making political hay over abortion—deserves refutation. It also deserves an honest look at the incoherence of U.S. law caused by the distortions of almost 50 years of Roe v. Wade.

As some commentators have noted, this case was not brought by pro-life advocates trying to create fetal personhood. It was brought by clients of the clinic who tried to get pregnant through its “services.” Apparently, “a patient wandered into the facility where the clinic stored embryos and dropped several of them.”

So, what happened to those embryos? They ceased being embryos. They were now dead tissue (not unlike the dead tissue we put into coffins).

So, what happened?

Did they “die?” You can’t “die” unless you previously “lived”–and that proposition would make pro-abortionists go ballistic.

Were they “damaged?” Clearly, irreparably.

But do we want to say they’re “damaged?” Damage usually happens to things. I drop a vase and it’s “damaged,” i.e., broken. Do we want to classify embryos as just “things,” not essentially different from–say–the damaged wedding pictures caused when the postman ignores the “Do Not Bend” stamp on the envelope and wedges them into your mail slot?

Things get damaged. Persons get injured. In either event, something happened that shouldn’t have happened, and somebody else might have a claim for compensation. Damages usually can be replaced (e.g., the photographer can reprint the warped wedding pictures). Injuries—not so much: rarely can an injury be repaired “as good as new” and, if that injury is lethal, it can’t be repaired at all.

Those are the questions the Alabama Supreme Court ruling had to face and address.

Some stored embryos were not “gently hurt” (as the pretty euphemism for breaking things goes). So, were they “damaged?” Or “injured?” The aggrieved parents/would-be parents/wanna-be parents (see how our pretending that when life begins is an insoluble question leads to many other questions?) sought compensation. For what did they want compensation? “Damaged” embryos? “Injured” embryos?

Those parents brought suit under Alabama’s Wrongful Death of a Minor Act. Why? Most charitably, they wanted to be parents and their embryos were gone. Least charitably, compensation for injuries is, in general, more generous than compensation for goods.

The clinic knew that, too, which is why they contended the Act was inapplicable. The Court had to decide: does that law apply or not?

It said it did. In this narrow set of circumstances.

There are all sorts of narrow sets of circumstances where similar laws have come into play. In 2017, a gunman entered a church in Sutherland Springs, Texas. He went on a shooting spree that resulted in mass murder. A similar question arose back then: how many victims were there? Crystal Marie Holcombe was in her eighth month of pregnancy. When she died, so did her male baby/fetus/clump of tissue. So, were there 25 victims? Or 26?

Could the family of Carlin Holcombe make a claim on his behalf? Sue the gunman or his estate civilly? Sue the gun manufacturer? Claim insurance? Crystal Holcombe didn’t want an abortion. She considered Carlin her baby. Can the law? Or did the law have to pretend he was a “non-person” so as not to upset the “balance” of Roe?

Last summer, in the course of a confrontation in a Columbus, Ohio suburb, police shot and killed a 21-year-old pregnant black woman. She was accused of shoplifting alcohol from a store and had gotten into her car’s driver’s seat. Police, with guns drawn, ordered her to get out of the car. She did not. Police claim she put the car in gear, which could have run over the policeman standing in front of her hood. He shot. The case is being investigated. Did police react appropriately or was Ta’Kiya Young another racial victim? For our purposes, was her baby/fetus/blob of tissue also a victim? Would the same politicians complaining about Alabama dare tell Ms. Young’s family: “that baby was not part of the case?” Would they dare say that, rather than find a workaround, even after they ensconced an abortion-on-demand amendment into the state constitution last November?

These questions–and the confusion they cause–comes precisely from the refusal to grapple with when does human life begin and in what circumstances does it acquire legal protection from society?

The Alabama Supreme Court only addressed the question: could the people who were/wanted to be/hoped to be “parents” through those now lost embryos able to claim “injuries” under a Wrongful Death law? The Court said yes.

Are in vitro clinics in a panic? Well, yes—Big Fertility is largely unregulated because politicians, already burned by abortion, did not want to get into regulating IVF when it emerged in the late 1970s, not many years after Roe. Allowing for damages for “injuries” as opposed to plain old “product damage” (AKA “products of conception”) cuts into profits and poses substantially more financial risk … to Big Fertility.

These questions need discussion. I fear, however, that many politicians are again beating a big retreat because Democratic demagogues want to beat political drums.

But let’s follow the pretzel-twisting legal logic that comes from our refusal to grapple with these questions to its conclusion.

If the Alabama Supreme Court had decided in this case that Wrongful Death Act did not cover the parents/would-be parents/wanna-be parents/embryo-owners’ claims, what other outcomes were possible? Two:

1. They could have been told, “oops, sorry. That’s the way the embryo crumbles!” and gotten nothing. Cruel to them but an outcome abortionists would have loved: no resolution of the status of the unborn child—even for purposes of injuries/damages—in law. So much for the advocates of “choice.”
2. They could have then pursued a damages claim. But that suggests their “property” was damaged, in this case irreparably. That would require redefining the aggrieved litigants not as “parents” but as “owners.” A Virginia judge faced that conundrum a while back and resolved it by looking to precedents from the Old Dominion’s slave code as it pertained to “chattel property.” Does 21^st century America really want Confederate, once slave-holding Alabama to go there?

When IVF came into the picture when parents divorced, similar conundrums arose. Are frozen embryos “children” to whom custody laws apply, or “property” to be divided along with the car, the house, and the furry babies? Faced with those Solomonic challenges, most courts punted, leaving the embryos literally on ice.

The problem is: the Alabama clinic had a premature defrosting, and the question became: how is responsibility to be assigned? Do we really want a Solomonic sword?

Catholic World Report