Embryos, children, and the black letter of the law
In the recent Alabama Supreme Court Decision on the fate of embryos, the court claimed, based on the Oxford English Dictionary, that the literal definition of child was interchangeable with embryo. To make its case, The Alabama Supreme Court needed an embryo to be a child so it could enforce the Alabama Wrongful Death of a Minor Act, § 6-5-391. This enabled the court to overturn a lower court decision that had denied several parents the ability to recover damages for the accidental loss of their frozen embryos. If an embryo is not a child, the argument evaporates.
In the law, words matter a great deal, and the meaning of a word is the whole point. One way a civil society creates a law is to write it down. Once written, others can read it to recognize the meaning. The law does try to be practical, and any common law statute can be interpreted in three ways. These are the literal rule – the plain language meaning; the golden rule – the intended meaning; and the mischief rule – the evil that prompted the statute. The plain language is the black letter of the law. The Alabama Supreme Court asks us to believe in plain language that “embryo” equals “child.” In truth, the Alabama Supreme Court rejects the plain language meaning of “child” and uses mischief to make the case. Anton Scalia would not have been pleased.
In this decision, the Alabama Court starts by meandering through a series of terms it claims to be equivalent descriptors of an unborn child. These include, "human life", "human being", or "person." The decision also states that the ordinary meaning of a child includes an unborn child. The court claims that the word "child" is unambiguous in its meaning and is not a term of art. In support of this claim, it cites the Oxford English Dictionary (OED) 113 (2nd Ed, 1989) that defines “child” as an unborn, or newly born human being; fetus, infant. If we confine ourselves to the OED, one word missing from this child definition is “embryo.” The Alabama Supreme Court would have us believe that “fetus” equals embryo. According to the OED, Fetus is “a young human or animal before it is born, especially a human more than 8 weeks after fertilization. We are invited to compare to embryo, “a young animal or plant in the very early stages of development before birth, or before coming out of its egg or seed, especially a human egg in the first eight weeks after fertilization. One may take exception to the OED as it defines a fetus as a child, but it clearly does not define an embryo as a fetus. Therefore, an embryo is not a child.
Perhaps the Alabama Supreme Court believed that frozen embryos were frozen fetuses. Approximately 5 or 6 days after fertilization, the product of that fertilization is a ball of about 200-300 cells. This is known as a blastocyte and if this cellular ball was inside a uterus, it would imminently implant itself into a uterine wall. The blastocyte is about 0.1 to 0.2 mm across. That is a little less than the thickness of a single human hair. At this stage, one need not be concerned with diapers or baby clothes. At this stage in a normal pregnancy, a women would feel no kicking as the blastocyte has no feet with which to kick. Freezing embryos is performed at the blastocyte stage or earlier. After passing 8 weeks, the fetus has the beginnings of recognizable human parts like eyes and a nose and parts of the jaw. Rudimentary arms and legs can be seen as well as fingers and toes. No one could mistake a blastocyte for a fetus, not even an Alabama Supreme Court Judge.
The judicial mischief here likely goes a little farther. Alabama Governor Kay Ivey had to back pedal when she realized the implication on frozen embryos and IVF. She sent encouraging hopes and prayers to couples seeking to become parents via IVF. The clear mischief was the search to lump frozen embryos into the anti-abortion fold. To save the trouble of a future argument, let’s consider a world where a frozen embryo is a person. Do all persons have an unfettered right to life? Personhood, as it turns out, provides little protection according to law. Corporations can be considered as persons, and most would agree corporations are rather lifeless. We kill people in war. We let people die by denying them healthcare. Alabama police kill 4.2 people per 100,000 residents, ranking 16th among the states. In Alabama, stand your ground laws allow you to kill someone if you feel you are in danger. Alabama also kills via execution and does it rather sloppily.
The law is language. The words count. Of course, Humpty Dumpty in “Through the Looking Glass and What Alice Found There” was not quite right. He said, “A words mean what I want it to mean, nothing more, nothing less.” In reality, words mean what the context stipulates or at least implies. Words do not mean anything you wish. The law in common law jurisdictions like the US, always tries to avoid ambiguity in the words it uses and takes great care to protect the innocent from biased findings, be they from judges or legislators. Calling embryos children or people makes mischief with the words and the world is no safer or better. In our desire to respect life, we must avoid rulings hidden under unreasonable and dogmatic agendas. Society gains nothing by seeking to personify every fertilized egg. Being a person has never excluded anyone from being lawfully killed, embryos included.
Joel Zivot is a practicing physician in anesthesiology and intensive care medicine at Emory University in Atlanta, Georgia. Zivot is a recognized expert who advocates against the use of lethal injection and the tools of medicine for use in the death penalty. Follow him on “X”/Twitter @joel_zivot
This article originally appeared on Montgomery Advertiser: Embryos, children, and the black letter of the law
