Law and Language- a Relationship in Jeopardy, Part I 

Corruption, particularly in the use of language, has been with us since the time of the sophists.  Most notably it was Plato who pointed out the crime of the sophists, who, in his time, infamously attempted to buy and sell knowledge.  They cheapened knowledge by commodifying it and used language as a tool to further a personal objective.  Knowledge is of the truth and is participated in through language, thus language should communicate the truth.  Language can bring us closer to reality or, if abused, warp and obscure it.

Our legal system depends heavily on precision with regard to terminology, especially in identifying who qualifies for legal protection.  As the 14th Amendment of the Constitution states, “All persons born or naturalized in the United States” are protected by its legal system.  As for the unborn, there has been an ongoing debate as to what stage of life should be protected.  With increasing technology, which allows us to access the earliest stages of human embryonic development, the lines have become blurred.  The first embryo disposition case, Davis v Davis, marks a key turning point in the question of how one ought to view the embryo in light of technological research.  In a time when human life is under the close scrutiny of the microscope, law must not only stay abreast of developing technology but it must stay ahead of it.  The terminology used in this and following disposition cases has caused a significant shift in public consciousness to the extent that moral and ethical considerations no longer revolve around respecting the entity of the embryo for what it is in itself.  Terminology appears to be changing at the pace of advancing technology, and as a result the reality of the embryo is obscured.

Josef Pieper draws on the Platonic criticism of the sophists, linking it to modern themes of the abuse of langue.  In his work “Abuse of Language—Abuse of Power,” Pieper builds on the Platonic principle that “all men are nurtured, first and foremost, by the truth, not only those who search for knowledge—the scientists and the philosophers.  Everybody who yearns to live as a true human being depends on this nourishment.  Even society as such is sustained by the truth publicly proclaimed and upheld.”(1)  Ordering oneself in accord with the truth is essential for understanding the world around us.  Reality is approached through language.  Deliberately clouding another’s perception of reality through language is a manipulation of its purpose and furthermore does a disservice to those we address.  Propaganda is a dangerous weapon, a manipulation of “the reality of the world around us, the reality of ourselves, and the reality of God as well.”(2)  Propaganda manipulates and misinforms on a larger, more public scale and in the past has been used as a political tool, “serving the tyranny, the corruption, and the abuse of language” with concealed menace.(3)  Pieper points out that the decay of true communication between individuals and further, in the public space, between the people and their leaders, is an abuse of the worst kind.  The same can be said about the misuse of language in the legal debate on the dignity of the embryo.

In the 1992 court case, Davis v Davis, a definitive stance is taken on the legal status of “frozen embryos” as the court adopts new terminology to distinguish between later development and the first fourteen days.  The events of the case are discussed in chronological order.  The context of the case involves two recently divorced individuals, Mary Sue and Junior Lewis Davis, who, having no legal agreement regarding their “frozen embryos,” requested that the Supreme Court of Tennessee review their case.  In the court’s handling of this case, there are two points which were highly influential in directing public consciousness away from the personalist understanding of the embryo.  First, the courts made a distinction between the very early stages of embryonic development and later, terming the stages “preembryo” and “embryo” respectively. While this may seem like a technicality, the very careful distinction provided a fourteen day window of time in which scientists could legally manipulate or perform research on the developing entity as it was not yet technically considered an “embryo.”(4)

The argument for the term “preembryo” is more fully drawn out in the testimony of Dr. Irving Ray King, a well-known gynecologist who was consulted in the Davis case.  He states “this 14-day period defines the accepted period for preembryo research.  At about 14 days…the group of cells begins to differentiate in a process that permits the eventual development of the different body parts which will become an individual.”(5)  It was upon this testimony that the court based its decision to incorporate the terms preembryo and embryo into the legal language of the case.  As stated by Justice Daughtrey,  "the first cellular differentiation of the new generation relates to physiologic interaction with the mother, rather than to the establishment of the embryo itself.  It is for this reason that it is appropriate to refer to the developing entity up to this point as a preembryo, rather than an embryo." (6)

The language used here is influenced by the idea that, in and of itself, the “frozen embryo” does not have any value.  Shifting the focus to the interests of the parents, and the interaction of the embryo with the parent, the court chose a different angle to determine the legal status of the “frozen embryo,” already an entity implicitly non-human.

While implantation marks an important stage of development, the question remains as to whether this was an arbitrary line drawn using terminology in order to create a window of opportunity for what could then be considered “ethical” research.  Author Lee Silver is skeptical of the move, saying it is motivated by “reasons that are political, not scientific.” (7)   He believes that the distinction is arbitrary, “biologically speaking, an important developmental event does occur at fourteen days.  But there are other important events that occur before that time and many more that occur later.” (8)  The pretext for re-naming the embryo at the stage before implantation depends on the assumption that because the “frozen embryos” are at a less differentiated stage (human in appearance), they do not merit respect.  It is an intentionally limited argument which does not look at the self-directed development of the embryo as a unity of activity but a multiplicity of activities.  In effect the person is named for the stages through which it must pass instead of the end toward which it is directed.

After setting forth that “frozen embryos” are not persons, the court turned to the question of whether they were property.  In a second critical move, the courts decided to look at the fate of the “frozen embryos” in what it said were the values and claims of the “gamete providers,” i.e. parents.  According to the Tennessee Supreme Court, citing a statement made by the Court of Appeals, ‘“[as] two or eight cell tiny lumps of complex protein, the embryos have no value to either party.’  Their value lies in the ‘potential to become, after implantation, growth and birth, children.’”   The court again, through language, moved away from characterizing the embryo as human or valuable in its frozen state.  It instead continues to affirm that it is an undifferentiated mass of cells.  Furthermore, the court stated, "The Court of Appeals held in effect that they will become parents if they both agree to become parents.  The Court did not say what will happen if they fail to agree.  We conclude that the answer to this dilemma turns on the parties' exercise of their constitutional right to privacy."(10)

The court, under the guise of privacy rights, allowed it to appear as if the “gamete providers” interests were paramount.  It is important to note, however, that the language of the court destroyed the role of parenthood itself.  It places a fundamental disconnect between the Davises and the “frozen embryos” because the court decided they were “neither persons nor property.” The court decided rather that they were entitled to “special respect because of their potential for human life.”(11)  In an attempt to dehumanize the “frozen embryos,” the court insisted that they had no intrinsic value.  Even though the court earlier voiced the desire to determine the value of the embryos based on the interests of the parents, the very fact that the Davises were considered merely “gamete providers” negated this possibility.  The court undermined the potency of Mary Davis’ clear concern for what she considered life.  Taking a different tack, the court shifted the focus to their potential value.  Thus Mary and Junior Davis are neither parents nor property-owners, but have an “interest in the nature of ownership.” (12)  It is clear that since the embryos are “neither persons nor property” the discussion of ownership is a feint.  The final blow comes at the end of the case when the court ruled that because there was no contract, and the adoption of the embryos by another couple would be a violation of Junior Davis’ privacy rights, the embryos were to be awarded to the fertility clinic.  Effective misuse of language on the part of the court turned what should have been a legal custody battle to less than a property issue.  The motion of the court in awarding the “frozen embryos” to the clinic draws into question whether there was ever any “special respect” at all.

In order to understand the significance of what the court was moving toward in Davis v Davis, it is important to understand what it was breaking from.  In his book Who is My Neighbor?, Thomas D. Williams, dean of theology and professor of moral theology and Catholic social doctrine at Regina Apostolorum Pontifical University, defines personalism as “any school of thought or intellectual movement that focuses on the reality of the person…and on his unique dignity, insisting on the radical distinction between persons and all other beings (nonpersons).” (13)   The personalist school of thought holds human life as valuable in itself, regardless of its usefulness or stage.  The embryo has innate dignity and is not viewed as a subject of research but a self-directed developing human being which is deserving of respect.

This system of thought endows the embryo with value aside from how it might benefit society or other individuals.  Pope John Paul II wrote profusely in defense of the unborn, often from a personalist perspective: “a person cannot be reduced to the status of a means or a tool of others.... A person may never be disposed of in order to make life easier for others.  Every person must be treated as an end in himself or herself.  This is a fundamental principle for all human activity.” (14)  This mode of thought obviously opposes the precedent set by Roe v Wade, which does not give legal protection to the fetus until viability, i.e. the second trimester.

Within the context of the Davis v Davis case itself, the Tennessee Supreme Court rejected two arguments which stem from personalist thought.  They went against the ruling of the trial court judge and the opinion of renowned geneticist Dr. Jerome Lejeune on the grounds of their contradicting Roe v Wade.  The trial court judge had ruled in the best interests of the “children in vitro” and therefore granted custody to Mary Davis, who wanted to have them.  Similarly, Lejeune, who was asked by the Tennessee Supreme court to give an opinion, rejected the term “preembryo.”  He argued that “life begins at conception” and thus the embryos are “early human beings.”  While Davis v Davis is not the first instance of the courts moving away from an understanding of the embryo condoned by the personalist school of thought, it is nonetheless a pivotal case.

Although it has been some time since Davis v Davis, the ideas entertained by the court in deciding how to deal with the question of the preembryo are still prevalent.  In the decision to separate the first fourteen days of embryonic development from the rest of the stages, the court opened the door for further abuse of language.  In making the parents merely “gamete providers” and approaching the embryos in terms of ownership or property claims, the court gave a permanent and public place to progressive and dangerous ideals, while rejecting the influences of the personalist school of thought.  In choosing to focus on the interests of the “gamete providers,” or the issue of framing a contract, the court opted for solutions which not only skirt the issue of the value of the embryo but deliberately obscure it.  Ultimately, the language used by the court as well as that used by the contributing opinions of the scientists and doctors should contribute to a clearer and more accurate picture of the embryo.  Language should accurately convey the truth of the knowledge at hand.  Those who play a role in directing public consciousness toward knowledge have the responsibility of allowing language to convey the truth.  Abuse of language always accompanies an abuse of power, as Josef Pieper has taught us, cheapening language, and opening the door to the menace of propaganda.

Part II of this article will explore the precedent set by the legal language of Davis v Davis in later disposition cases, such as Kass v Kass, as well as discuss the danger of the still strong ideas and schools of thought highlighted by Davis v Davis.