The Fetus Fetish in South Dakota

Comments

47 comments posted
indeed

it is indeed a slippery slope, that foul beast we call cultural lag.

move the fuck out of south dakota. :)

there's only so many posts you can have that say the same thing...

something is fucked in the US.. it always has been, and always will be; no amount of blogging is ever going to change it.

but hey, at least we can get EC at Walmart

john's picture
Posted by john (not verified) on 4 March 2006 - 4:24pm
Moving

I agree that moving out of South Dakota is an option - leaving the state with the fifth highest per capital income might be tough, though. But that's a sad commentary - to have to leave one's home because of a religious viewpoint is being shoved down our throats.

I think blogging builds awareness and I am not as pessimistic as many are that people won't change.

People need an alternative. If the fundamentalists win, there will be a backlash. We'll see how, or if, that plays out.

Matsu's picture
Posted by Matsu on 4 March 2006 - 4:34pm
How true, Indeed.

It has become a very daunting reality.

On one hand, the systematic rape of womens rights over and above their own body; the other, politics invading the emotional, and personal devotion that people have to their faith.

And to be clumped together with extremists is equally unnerving and alarming. Not all people of faith wish to dictate his or her belief on others. Regretfully, these current situations are not painting Christians in any particularly positive light.

But, I digress.

Come to Canada! We have clean air; clean water; and free health care.

john's picture
Posted by john (not verified) on 4 March 2006 - 6:50pm
Heh.

The trouble with relying on a border change for safety is that clean water and clean air don't respect them;Environmental problems have the nastiest habit of being mobile.

As for health care, I'd sell my soul for a single-payer system if I believed in souls. As it is, I tell my peers who threaten to move not to. We need every resilient and humane body here that we can get. Besides, the U.S. is such a giant, meddlesome beast, that it seems foolish to imagine that I'd escape its influence just by moving to another part of the world.

alsis39.5's picture
Posted by alsis39.5 (not verified) on 5 March 2006 - 12:01am
What is your connection?

I agree that the SC ban on abortion is a horrible thing. I'm not really getting your connection to surrogacy, though. I don't know the surrogacy laws in SC, but to abort the fetus should be the choice of the Intended Parents, not the surrogate, unless her life is in danger. That's stated in just about any surrogacy agreement. I'm very pro-choice, but I don't think a woman should have the choice to abort somebody else's baby, just because she "has a change of heart." The woman made her choice when she decided to become a surrogate.

Also, most surrogates are not Third World women, or women of poverty in this country. Most Intended Parents want somebody who has access to proper nutrition and healthcare. True, India has an ever-growing surrogate population, but most surrogates, in this country at least, are middle-class women, many with carreers and a good education. I personally have a college degree, a husband with a good job, a job of my own, and I own my own big house. I am hardly either of the above-mentioned classes of women, and yet, I have chosen to be a surrogate. Should I be able to abort this baby because I felt like it? No, it's not my baby. I chose to use my womb to help a couple build their family. They've spent thousands and thousands of dollars for this baby to even exist, how would that be for me to just get rid of it?

I think perhaps you need to do a bit more research on the subject.

karen's picture
Posted by karen (not verified) on 5 March 2006 - 8:25am
The Latest Research on implanted embryos

I agree that research is needed here.

First off, the original post was about the South Dakota, not South Carolina.

This technique I spoke about above and subsequently is called In Vitro Fertilization (IVF) and it has changed the landscape since Roe. Many Feminists are currently engaging in a discussion of what surrogacy means to a society ... when one woman carries another woman's impregnated egg. The popular myth is that surrogacy is performed by middle class white women. but it seems the trend is to hire a woman in another country.

The current price for an IVF surrogate's services is about $20,000 in California, which means it is about 40-percent above minimum wage. Go to Mexico and that same $20,000 is twenty times as much as the minimum wage. It doesn't take a rocket scientist to see where rented wombs are going to come from. Feminist writer Janice Raymond quipped that in the first world it's called surrogacy, but in the third world it amounts to baby farming.

Surrogacy and the reproductive technology is going international.

These data come from Debora Spar's book, "The Baby Business," ISBN 1-59139-620-4. Spar is a Professor at Harvard Business School and her book came out two weeks ago ... and speaking of reading the latest research, karen, maybe you would do well to start there.

Matsu's picture
Posted by Matsu on 5 March 2006 - 9:13am
I don't believe any contract

...can obligate a woman to cede her control of her own health and welfare. Otherwise what is the contract but bondage into slavery?

At the very least, such contracts would violate occupational safety-type laws, wouldn't you think?

media girl's picture
Posted by media girl on 5 March 2006 - 9:37am
A question of whether it's elective ...

I think the determination of whether a surrogate mother can have an abortion really turns on whether it's an elective abortion. If having the baby will adversely affect her health or life, I don't really see any question that she should be excused from the contract.

But an elective abortion is an entirely different kettle of fish, as it constitutes a willful breach of the underlying contract. IMO, a surrogate mother who aborts the baby should be treated as anybody else who has breached a contract -- liable to the other contracting party for the costs of the breach.

Of course, my thought presuppose that a lawsuit is brought only after the fact. Before the fact, I can certainly see a surrogate mother's decision to have an elective abortion causing the intended parents to try to seek an injunction or an order for specific performance. I have no idea whether that sort of action would succeed.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 9:49am
The dark side of the question

Under the South Dakota law, in the case of rape and/or incest, there is no "election." Asserting property rights over a woman's womb is taking us into legal issues that have not been addressed since slavery ended - when the issue of a slave was the property of the owner.

By saying a woman must carry the fetus of a rapist, is rewarding the rapist in that often this kind of crime is intended to humiliate the victim and saddle her with consequences not at all of her doing.

Matsu's picture
Posted by Matsu on 5 March 2006 - 9:59am
So what is an "elective abortion"?

Aren't they all elective, unless the woman is in a coma? How do you decide what's "elective"? Do you start lining up all sorts of politically-defined medical requirements? How do you evaluate them? Who evaluates them?

Would throwing up five times a day qualify? How about chronic back pain? What if the fetus develops complications? I'm sure the non-bearing "parents" would be much more willing and interested in seeing the pregnancy through than the woman actually bearing the fetus. So who decides?

The whole frame of "elective abortion" is pernicious and suggests that the woman's self-determination is somehow suspect or arbitrary.

What did you eat for breakfast? Did you get permission for that first? What if someone else does not approve? Why should you get to have an "elective breakfast"? Oh, wait. It's your right to do what you want with your body. Oh, yes. Silly me.

media girl's picture
Posted by media girl on 5 March 2006 - 10:15am
The old double standard

Every girl learns on her mother's knee that there is a double standard and she must be mindful of that.

Moms tell us to look at the language. A man who sleeps around is: a playboy, a man about town, a Casanova, a lady's man, a stud ... and so on. Positive terms, even if begrudgingly so.

A woman who participates in it? She is: a slut, a whore, a strumpet, a loose woman ... and so on. These are negative terms, unequivocally.

In much of the discussion, there is an unstated assumption that the woman "got what was coming."

We see some of the same about AIDS/HIV from the same religious authorities. They claim God created AIDS to punish homosexuals.

The debate around a woman's right to control her reproductive destiny is framed around religious views of women, and the belief that once a man has planted his seed, it's the woman's problem. Oh, you can say he has to support the off-spring or goes to jail for what he did, but that really doesn't get the woman out of where it landed her, now does it?

The promising career as a doctor, or lawyer, or even as a virginal bride is in doubt.

Men have no idea, do they?

Matsu's picture
Posted by Matsu on 5 March 2006 - 10:37am
Definitions and drafting

I found a definition, of sorts:

Elective abortions are those initiated by personal choice.

Also, here:

An abortion may be termed elective, because it is a chosen course of action, rather than a naturally occurring bodily process. (A naturally occurring abortion is also known as spontaneous.) Sometimes, an abortion is called therapeutic. This means it is a treatment used to protect the health of the woman.

Perhaps we have an acceptable, generally used definition: that an "elective" abortion is one initiated by personal choice, rather than one initiated to protect the mother's health or life.

I'll start with the easiest of your questions:

What did you eat for breakfast? Did you get permission for that first? What if someone else does not approve? Why should you get to have an "elective breakfast"? Oh, wait. It's your right to do what you want with your body. Oh, yes. Silly me.

If I have a contract with somebody to supply me breakfast each morning in exchange for a certain sum of money, then I am obligated to furnish that person money as long as he furnishes me with breakfast. If another person offers me compensation to have a certain food for breakfast, every morning, for nine months, then, yes, I am obligated to have that for breakfast.

If I fail to fulfill the obligations of my contract, then I have breached the contract, and I am obligated to remedy that breach.

Before we continue, I would like to note that I do not advocate specific performance or forced pregnancy. Rather, I advocate that if a surrogate mother has contracted to carry a baby to term, and she chooses not to do so, that her breach be treated like an ordinary breach of contract. Meaning that, for example, she be required to pay to the expectant parents whatever damages have resulted from her breach of the contract.

I will grant to you that cases can often be more complicated than this, but I think it's important to establish these basic principles before arguing further.

Aren't they all elective, unless the woman is in a coma? How do you decide what's "elective"? Do you start lining up all sorts of politically-defined medical requirements? How do you evaluate them? Who evaluates them?

The definition above might actually be a good starting point. Beyond that, the first answer for these questions will lie in the underlying contract. Does the contract define an "elective" abortion? Does it define a "cooling-off period" in which the surrogate mother can withdraw from the contract if she chooses? Does it require a doctor's recommendation? Does it define what constitutes an acceptable versus unacceptable risk? (Note: "Unacceptable" vs. "acceptable" might be held as void for any number of reasons).

After that, yes, you'll have to look at generally accepted definitions, at testimony from expert witnesses, and on precedent, both legal and medical.

Would throwing up five times a day qualify? How about chronic back pain? What if the fetus develops complications? I'm sure the non-bearing "parents" would be much more willing and interested in seeing the pregnancy through than the woman actually bearing the fetus. So who decides?

Again, MG, this would have to be defined in the contract. Beyond that, I speculate that a court adjudicating the contract would approach this on a "reasonable person" basis. Would a "reasonable person" expect these complications from pregnancy? Would a "reasonable person" expect the throwing up, the increase in weight, the health complications?

"Who decides," again, is dictated in the underlying contract. In general, I would think that the expectant parents, under the contract, would attempt to reserve to themselves at least some say in whether the child is aborted or not in most circumstances.

On the flip side, I can see a few arguments that might be used to overturn these contracts, essentially rendering them void. However, i question whether this would be a good thing. Surrogacy allows couples to exchange one thing of value for another. A couple that cannot have children, but has money, can contract with a woman who can have children, but may not have money, to furnish items of value to both of them. Render a particular contract in this industry void ab initio, and you undermine an entire raft of transactions that can enrich all parties.

Finally, I note again that I do not argue in favor of forced pregnancy or any such items. I merely argue that if a person enters into a valid, legal contract and breaches it, then that person must be held to account for damages the nonbreaching party sustains because of that contract.

--|PW|--

P.S. I expect that courts have already addressed this issue, but I find myself hamstrung in terms of legal research, as I no longer have the access to legal databases that I once had.

pennywit's picture
Posted by pennywit on 5 March 2006 - 11:13am
That door swings both ways

A government that can prevent an abortion can force an abortion. A government that can terminate a pregnancy can force a pregnancy.

One of the most fundamental rights seems to be to have the right to control our own bodies. If our bodies are controlled by another, some form of "ownership" by the other is implied.

Renting out a womb seems reasonable at some level. Is renting out a vagina, down in the red light district, also reasonable?

Sunday school answers from the 19th century are not going to solve what has occurred in science and the sooner Americans discuss this outside the sentimental notions foisted by the fetus fetishists, the sooner we will have some reasonable course of action.

As one feminist quipped, "get your church out of my womb."

Matsu's picture
Posted by Matsu on 5 March 2006 - 12:02pm
Back to "elective abortion"
An abortion may be termed elective, because it is a chosen course of action, rather than a naturally occurring bodily process. (A naturally occurring abortion is also known as spontaneous.) Sometimes, an abortion is called therapeutic. This means it is a treatment used to protect the health of the woman.

So an abortion is "elective" if the woman makes the decision by herself, without the permission, recommendation, requirement or compulsion of nature, a doctor or a politician.

In other words, what seems problematic (to you?) is that a woman might make the decision on her own.

Sure, you can wring your hands about contractual obligations in a surrogacy case, but every person has the right to break a contract and face the consequences (which are nearly always civil, not criminal). So indeed, why should ending a pregnancy be any different?

The woman has the right to choose because it's her body, period.

Here's the question: Does the Constitution allow someone (a couple, for example) to compel someone else (a young woman, for example) through whatever forces (financial desperation, for example) to sign away her Constitutional Rights?

Does a marriage have the same effect?

Really, what are we talking about here but what seems to be a woman's only provisional right to control her own body?

media girl's picture
Posted by media girl on 5 March 2006 - 12:05pm
Explanations
Here's the question: Does the Constitution allow someone (a couple, for example) to compel someone else (a young woman, for example) through whatever forces (financial desperation, for example) to sign away her Constitutional Rights?

I will point out, once again, that a person is capable of abridging or "singing away" elements of his rights as part of a contract, whether that right be the right to bear arms, a right to privacy, or freedom of speech.

Our fundamental disagreement, I think, is that you and I approach this from totally different directions. You're looking at it as a women's rights issue, while I'm looking at it as a contract/law issue.

Now, if I'm reading you right, are you saying that the surrogate in this case preserves her unilateral right to an abortion, but that she should pay money damages if she chooses to exercise that right?

I note also that I do not advocate criminal penalties for breaching a surrogate contract in this manner. As far as I am concerned, a surrogate mother who chooses an abortion in violation of that contract is accountable only to the expectant parents, and only in the same manner that a person would be held accountable for breaching any other contract.

--\PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 12:16pm
Oh really?
I will point out, once again, that a person is capable of abridging or "singing away" elements of his rights as part of a contract, whether that right be the right to bear arms, a right to privacy, or freedom of speech.

I do not believe this is true. The 13th Amendment seems to preclude that.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

That's pretty unequivocal.

Sure, people can agree to forbear when it comes to rights they have, but that doesn't mean they no longer have their rights, just that they've agreed not to exercise them.

Any other arrangement becomes a form of servitude ... slavery.

media girl's picture
Posted by media girl on 5 March 2006 - 12:58pm
Cite?

I'm not that familiar with 13th Amendment law. Do you have a citation that applies the 13th Amendment in this way? If it's not available online, would you be able to post a short excerpt? I'd like to examine that sort of jurisprudence or legal thought before I assay a counterargument.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 3:22pm
Try Dred Scott

There was a lot of legislation having to do with ownership of people - original intent, you know - of our founding fathers that one person can own another.

Matsu's picture
Posted by Matsu on 5 March 2006 - 5:17pm
Doesn't work

Dred Scott is pre-Thirteenth Amendment, so it doesn't apply that amendment.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 5:42pm
Looking for laws in all the wrong places

You wanted to know the kinds of laws that the 13th overturned. Once an amendment is passed, the obsolete laws are pretty much tossed out - except in the case of women where their second class citizenship still persists.

Matsu's picture
Posted by Matsu on 5 March 2006 - 6:11pm
Not quite

That's not what I was looking for. I was looking for applications of the Thirteenth Amendment to contractual obligations that require a person to forbear from exercising a constitutional right or cede that right to another individual.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 6:15pm
Involuntarily servitude

Forced to breed against her will - just like in the days of slavery - carrying the rapist's child.

Matsu's picture
Posted by Matsu on 5 March 2006 - 6:56pm
SD Abortion bill

Honestly, I'm not sure how a court would find on that argument. I really don't know enough about 13th Amendment jurisprudence to say for certain. Not to disrespect your interpretation, but I can't effectively argue for or against it.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 7:35pm
With a Supreme Court of today

Who knows, really? Especially with our latest addition -- a man who got into law because he didn't like what those other people were doing in college, a man who seems fairly obsessed with other people's business, and loves the power of government.

media girl's picture
Posted by media girl on 5 March 2006 - 7:41pm
IANAL

Just a citizen with self-evident rights and a pollyanna-ish notion that the Constitution means what it says.

But I would be interested in how a person could contract away their Constitutional rights. If I sign a non-disclosure agreement, some would say I've given up my free speech rights. But all a contract is is a promise, not an entire renegotiation of my Constitutional rights. I've promised not to disclose information.

If I were to later disclose in a way that violated the NDA, I might be in breach of the contract, but I would still be within my Constitutional rights.

media girl's picture
Posted by media girl on 5 March 2006 - 5:22pm
Clarification

I suppose I should clarify -- you can certainly contract away your right to exercise your rights. Your NDA, for example, keeps you from revealing company secrets, thus you're contracting away your exercise of freedom of speech. A noncompete agreement contracts away a bit of your freedom of contract, while an arbitration agreement contracts away some of your right to have your case heard in court. Violation of each of these carries with it a civil penalty. Similarly, I think, aborting a validly contracted-for pregnancy would lead to civil penalties for breach of contract.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 5:29pm
Do I get to decide about my body or not?

I think this is a good discussion and a appreciate penny wit's points. Nonetheless, I come out on this one close to the position of media girl.

The most fundamental right is if I am going to let something grow inside my body, or not. To the extent my right to choose is thwarted, my freedom is diminished.

I believe I have a fundamental right to my own genetic material and if I do not wish to see it co-mingled with other genetic material, it is my right to end the process.

Matsu's picture
Posted by Matsu on 5 March 2006 - 12:18pm
Talkin 'bout rights
I believe I have a fundamental right to my own genetic material and if I do not wish to see it co-mingled with other genetic material, it is my right to end the process.

Now ... if you agree with another person to abrogate that right for ... oh, I don't know ... a period of nine months, but then you change your mind, shouldn't that other person have a right to damages for the breach of the contract?

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 12:24pm
Selling a baby

"For the bargained for consideration of one dollar, I Matsu, hereby agree to carry an embryo in my womb and bring it to term."

Matsu terminates her pregnancy in breech of contract. Plaintiff sues Matsu. What are the damages?

[Looking at seating chart] Mister Penny Wit?

Matsu's picture
Posted by Matsu on 5 March 2006 - 12:37pm
Well, well, well.

If Matsu terminates in "breech" of contract, the other party should sue the tailor for faulty pants and ponder why such things were included in the contract in the first place. But if Matsu terminates in "breach" of contract, appropriate damages are the sum of:

a) $1 (the cost of the contract)

b) Costs reasonbly borne in finding a new person to carry an embryo, including the fee demanded by the new surrogate (within reason), the costs involved in conducting the search for a suitable surrogate, and the cost of any medical procedures that might be repeated.

Essentially, the nonbreaching party is entiled to whatever damages that would put him in the same position as if the promise had been peformed.

This answer is, of course, at common law, and assumes that there are no contravening statutes, and that the contract properly meets all elements of the Statute of Frauds.

--|PW|--

I add, parenthetically, that the above is hypothetical and for discussion purposes only. No person reading this should construe it as actual legal advice.

(Sorry ... I have to say that. I think. Best to be safe.)

pennywit's picture
Posted by pennywit on 5 March 2006 - 12:48pm
Hadley v. Baxendale

Hadley v. Baxendale

Court of Exchequer, 1854.

I think the damages are excessive and one-sided.

Matsu's picture
Posted by Matsu on 5 March 2006 - 12:56pm
Damages

How are the damages that I assay excessive? You cite Hadley v. Baxendale, 156 Eng.Rep. 145 (Court Ex. 1854), but you fail to state in what way, exactly, my assessment of damages runs counter to that case. Could you please elaborate?

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 1:16pm
Why does Plaintiff get all the damages?

I think he should get his dollar back.

A girlfriend of mine was on a date and the guy really rolled out the red carpet. Fancy meal and all. At the end of the evening, he wanted her to pay him back with sex.

She said no.

He reminded her that he had bought her a fancy dinner.

"What do you want me to do?" She took her finger and pointed it into her mouth and throat, as if to induce vomiting.

Men tend to see all their efforts (and (sunk) costs) in getting the woman to say "yes." It is their investment and she "better put out" or she can walk home.

If all I received for my efforts is a dollar, and I break the contract, I think all the remedies you propose constitute unjust enrichment since he's only out the dollar.

Matsu's picture
Posted by Matsu on 5 March 2006 - 2:19pm
Drinking by the surrogate

Matsu agrees she will refrain from imbibing during her pregnancy. She delivers the baby and gets her dollar.

Later it turns out that someone saw her sip a glass of champaign on New Years in violation of the contract.

What result?

cf. CLARK v. WEST

193 N.Y. 349, 86 N.E. 1 (1908)

Matsu's picture
Posted by Matsu on 5 March 2006 - 2:31pm
No, he's not just out the dollar

Fortunately, I've got my old 1L Contracts book on hand. Damages in a breach of contract include not just a refund of the price, of the contract, but the money it would take to put the expectant couple in as good a position as they would have been in if the surrogate had not breached the contract.

Because of the surrogate's breach, the expectant couple have not only lost the $1 in value, but must also undertake a search for a new surrogate mother, meet that surrogate mother's fee (within reason, of course), and pay for the procedures to implant a new fetus in a new surrogate mother. For reference, I suggest Laredo Hides Co., In. v. H & H Meat Products Co., Inc., 513 S.W.2d 219 (Cv. App. Tex. 1974). In that case, the court found that damages extended not merely to immediate loss for hides that were not delivered, but also for the increased price that the buyer had to pay to obtain hides elsewhere -- actually, the difference between the price for the hides on the market and the price negotiated in the original contract.

In the case you cite, damages were limited because the buyer did not adequately inform the seller of the urgency of his need for delivery.

Your hypothetical (dinner, sex, etc.) is inapposite here. (For convenience, I will assume the legality of using sex as consideration in a transaction). In your hypothetical there was no bargain or exchange, no offer, no acceptance, no "meeting of the minds," as it were, and therefore no contract.

I also dispute this statement:

If all I received for my efforts is a dollar, and I break the contract, I think all the remedies you propose constitute unjust enrichment since he's only out the dollar.

In that case, expectant parents are also out whatever cost they paid to the doctor that implanted the embryo.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 3:19pm
On second thought, I may have overestimated ...

The costs of the surrogacy are:

$1 to Matsu for carrying the child.

Unspecified sum (x) to doctor for implanting fetus.

Unspecified sum (y) to doctors for health care during pregnancy.

(collectively, "surrogacy 1 costs incurred")

============================================================

After the breach, expectant parents must find a new surrogate, meaning they will have to pay:

The new surrogate's fee (whatever it might be)

Unspecified sum to doctor for implanting fetus.

Unspecified sum to doctors for health care.

(collectively, "surrogacy 2 costs")

==========================================================

But, we must also note that the expectant parents avoided the cost of seeing the surrogacy all the way through (medical costs for further health care during pregnancy, medical care for birth and delivery, medical care for surrogate's needs flowing out of pregnancy).

(collectively, "surrogacy 1 costs avoided")

======================================================

So the proper measure of damages would be:

Surrogacy 1 Costs Incurred + (Surrogacy 2 Costs - Surrogacy 1 Costs Incurred) - Surrogacy 1 Costs Avoided.

That sounds about right.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 4:06pm
So you can see

Matsu, having seen these legal problems and vulnerability, will probably not get involved in carrying anyone's child for breech of contract because you'll sue the pants off of her.

No. The couple can stay barren. Too much risk and little thanks or reward.

On the other hand, i don't think Matsu stands a chance, anyone, because under the South Dakota law, if an embryo is placed within her, she must carry the child to term.

Matsu's picture
Posted by Matsu on 5 March 2006 - 5:23pm
Saying what I should say

I should probably note at this point that I do indeed oppose the SD law, or indeed any law like it. Offensive to the rights of the individual.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 11:01am
Plan 9 vs. Plan B

A happenstance of in vitro fertilization (IVF) is the creation of excess embryos. In Debora Spar's "The Baby Business," she cites statistics from 2003 that there are 400,000 such embryos in cold storage, so to speak.

A group with Christian affiliations sees these 400,000 embryos as "people." That's roughly the population of Alaska and worth a seat in the House.

The Christians have issues with this and have suggested these embryos be put up for adoption and implanted via IVF. "Adopt an embryo." And yet, the people whose sperm and egg were united in the process are reluctant to see their genetic material re-purposed. That is, not many couples, it seems seem to want to sell, give, donate, what have you, one of their embryos to another couple in order to create a child to be raised by another family

If these embryos are persons, would a court rule that if the person was capable of making a decision, that he or she would want to be brought to term? Can these embryos be removed from the control of the partners who created them and put under the jurisdiction of a court?

Can they be irreversibly implanted into other women, the wishes of the originating partners, notwithstanding?

What I am driving at with this series of posts (in addition to a formal book review of Debora Spar's book, "The Baby Business") is to speak to the other side of the coin.

Spar said in a lecture, with the birth control pill, people could have sex without children. Today we can have children without sex.

Much of the anti-choice rhetoric is fixated on people who have sex in which an embryo is formed, and then must be brought to personhood.

But the flip side is a state that believes an embryo has standing and is a "person," and what does this mean? It probably means more than what the South Dakota legislators bargained for.

What do we do with the 400,000 "people?"

Let that genie out of the bottle and we may end up in a situation that no one could have anticipated with ramifications that run long and deep.

Matsu's picture
Posted by Matsu on 5 March 2006 - 11:26am
Property

I found this article, although I'm not sure how old it is. This column also explores the issue.

If you'd like my two cents on this, I'd say that a frozen embryo is a bit of property, and that both mother and father have interests in the property. It's a collection of cells, hasn't been born, has no awareness of its own existence, etc. and thus doesn't qualify as a legal "person."

But you are right, Matsu. This tendency to accrete personhood to fetuses is indeed troubling. My own nightmare involves a court appointing a guardian ad litem for a fetus, who then brings suit to halt a woman's attempt obtain an abortion. That particular line, I think, would be the final one that utterly eradicates a woman's control over her own body ... and it has disturbing consequences for all reproductive decisions.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 11:48am
"Who" is owned?

The 13th Amendment reads, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Matsu's picture
Posted by Matsu on 5 March 2006 - 12:06pm
Ownership

Except that if you examine Roe v. Wade, you will find that the Supreme Court explicitly rejects accreting personhood to the fetus, noting that birth has always been the traditional point for asserting such rights.

Which is why I would support a law that establishes a crime for assaulting an pregnant and causing death/harm to the fetus, but not a law that establishes a crime for causing death/harm to the fetus. I can certainly accept an argument that causing harm to the unborn child should be a crime ... but it is a crime against the pregnant woman, not against the fetus.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 12:19pm
Roe in South Dakota

Yes, but the new Court is going to overturn Roe, or so the Christians are praying.

The South Dakotans are saying life begins at conception and they are banking that the Supreme Court will agree with them.

The purpose of bringing this discussion up at this time is to point out how antiquated the dialog is and how far reproductive science has taken the issues. If we are going to face off against the fundamentalists, we need to be asking questions outside their religious assumptions. We ought to be look at what 21st century technologies are emerging.

I agree with you, penny wit, that there WILL be legislation and issues of property rights, but the life-begins-at-conception argument (which I continue to believe is a religious concept) is out of step with the realities of the 21st century.

The United States might throw walls around the problem, but people will go to other nations and the developments in human reproduction will be settle outside the United States and the proposed Luddite policies.

Matsu's picture
Posted by Matsu on 5 March 2006 - 12:28pm
Brave New Womb

The dialog is antiquated on all sides, when you think about it. Roe is based in part on a fetus's viability, and we're may soon extend viability to the first few days after conception.

Honestly, all this makes me think that before I decide to reproduce, I should write up a contract and present it at time of conception.

--|PW|--

pennywit's picture
Posted by pennywit on 5 March 2006 - 12:51pm
Seizing the means of reproduction

I agree. The debate by both the pro-choice and anti-choice groups is stale and needs to be reinvigorated.

Matsu's picture
Posted by Matsu on 5 March 2006 - 1:07pm
Happy To See Change...

...in the pro-choice debate. However, the fact that choice is repeatedly denigrated as a mere "women's issue" or "special rights issue" is not the fault only of feminists. You just have to see the way many liberal male bloggers treat the issue (or ignore it) to know that's true.

You want to sell choice as just one facet of public health ? I'm all for it, as long as we don't end up in the murky waters of demanding that poor and/or minority women be subject to mandatory abortions or sterilization. Those folks have enough people (many of them "good Christians") tyranizing their existence as it is.

Most liberal men have the luxury of treating reproductive rights like a special occasions garment they only have to break out once or twice a year. Women don't have that luxury. From roughly the age of 10 to the age of 50, we have reproductive potential almost constantly. Just as we breathe, eat and drink every day. Choice is, in fact, air, food and drink to us. We cannot be healthy and functioning humans without it.

That's my view, anyway. I don't believe in the current gospel of "re-framing." Throw out the fucking frame and the fucking picture and put up something new.

alsis39.5's picture
Posted by alsis39.5 (not verified) on 5 March 2006 - 1:47pm
New technology

I don't believe in gospels, either.

However, Roe has stood as proxy for the ERA, a sort of "almost equal rights amendment."

These debates go back 30 years without ever considering that human reproductive rights is part of a bio-genetic technology that will dwarf the internet - not so much in raw dollars ... at least not at first ... but in its impact of how we live and think.

Matsu's picture
Posted by Matsu on 5 March 2006 - 2:01pm