 By creating a distinction between an “embryo” and a “preembryo” and declaring the “preembryo” to be neither “person nor property” the Tennessee Supreme Court, in Davis v Davis, distorted the image of the human embryo. Although the distinction seems slight, separating the first fourteen days of life from the rest of development through a change in terminology is more than a technicality. It signified a radical step away from a personalist understanding of the embryo. Personalism argues that the embryo is human life, sacred at every stage, and deserving of protection from abuse or manipulation. In 1992 the Davis v Davis case opened the door to such manipulation through the power of legal terminology. The 1998 New York Supreme Court Case Kass v Kass followed in this path. By using the deceptive terminology set forth in Davis v Davis, the court again failed to acknowledge the central issue, the question of legal rights for “frozen embryos.” The meaning of the embryo must be recovered from the obscurity that the language of the court has veiled it in. Furthermore, as Josef Pieper reminds us, the manipulation or warping language is a deliberate misuse of power.(1)
The question to be decided by the 1998 New York Supreme Court in Kass v Kass involved the fate of the five cryogenically preserved embryos. The divorced parents of these “frozen embryos” were both invested but for different reasons. The mother wanted to bring them to term herself, claiming this as “her only chance for genetic motherhood,”(2) while the father was opposed to “the burdens of unwanted fatherhood.”(3) What immediately distinguishes this case from the Davis case is that the couple had a consent form drawn up prior to their divorce. However, Maureen Kass claimed her interests were not accurately represented by the consent form. “Appellant claims the consents are fraught with ambiguity in this respect; respondent urges they plainly mandate transfer to the IVF program.”(4) Regardless of the clarity of the contract, the issue stands that the court in this case allowed the contract to become the deciding factor, rather than addressing the problem of what the embryo or so called “preembryo” or “pre zygote” actually is and how it should be represented in law.
Looking to the precedent set by Roe v Wade and Davis v Davis, the court affirmed that the “pre zygotes” were not persons, neither was the mother entitled to any particular claim or right: “the disposition of these pre zygotes does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice; nor are the pre zygotes recognized as ‘persons’ for constitutional purposes.”(5) In this and the previous embryo disposition case, there is a progressive move away from language which humanizes the entity of the embryo. Because the frozen embryos were not yet implanted, the court did not consider it exclusively a “woman’s right of privacy.” Just as the frozen embryos are not considered human, so too Mrs. Kass is not considered a mother. Using the language of a business transaction is another way in which the court moves the debate from a question of rights and dignity to a matter of contract law.
After adopting the terminology “pre zygote,” the New York Court proceeded to define the parameters by using the contract as the determining factor. While recognizing that the Davis case admitted to a kind of “special respect” for the “frozen embryos,” the New York Court chose to emphasize the parents’ “procreative autonomy” as imperative. The New York Court was insistent that “the courts must in every case balance these [parents’] competing interests.” For the Kass case the parent’s “competing interests” were expressed in the form of a contract. The court overlooked the presence and actuality of the embryos and immediately made the contract paramount. As stated by Justice Kaye, who read the opinion of the court,
The relevant inquiry thus becomes who has dispositional authority over them. Because that question is answered in this case by the parties' agreement, for purposes of resolving the present appeal we have no cause to decide whether the pre zygotes are entitled to “special respect.” (7)
As the court states, they do not see the pre zygotes as deserving of the “special respect,” a term which is present in the Davis v Davis case. The court knocked down what little acknowledgement the previous case had awarded to the embryos in terms of dignity or intrinsic value. Later the court states, “The subject of this dispute may be novel but the common law principles governing contract interpretation are not.” Writing off the situation as too “novel” for their jurisdiction, the court moved the issue into the realm of contract law.
According to Angela Upchurch, a contributor to the Connecticut Law Review, who comments on the tack which the court takes, “reasoning that the progenitors’ agreements could be legally enforced without first designating a legal status for the embryo, the court attempted to avoid imposition of such statuses altogether.”(8) Jumping directly to the contract has several implications according to Upchurch, “’the very recognition of the progenitors' authority to contract for the disposition of the embryo without court oversight implicitly emphasizes the property-like nature of the embryo.”(9) The fact that the interests of the parents become for the court the sole consideration in deciding the fate of the “frozen embryos” further illustrates the legal non-status of these entities. Upchurch suggests that the court’s implication even further cements the belief that the embryos have a primarily property-like nature.
Acting in amicus curiae, the New York Civil Liberties Union, a branch of the ACLU, also had a part to play in swinging the issue into the realm of contract law and Stephen Kass’s favor. As the legal arm of the NYCLU, the Reproductive Rights Project “continues to defend abortion rights as well as the broader reproductive rights agenda: sex education, contraception, STD prevention, and the full range of pregnancy related services.”(10) Seeing the great potential for political influence in the Kass case, the Project involved itself by submitting amicus briefs “at every level of proceeding.” Furthermore,
We also provided extensive assistance to counsel for Stephen Kass, who had little previous exposure to reproductive rights jurisprudence and eagerly incorporated our ideas and suggestions into [his] arguments. In fact, Project counsel helped [him] prepare the oral argument before the Court of Appeals. (11)
The Project itself had no written statement concerning the exact contract in the Kass case, but the fact that the special interests of this powerful pro-choice organization were involved on numerous levels brings the honest inquiry of the case into question. They engineered the argument of Stephen Kass to fit with the agenda of their program and coached him through the process. The nature of a truthful and open inquiry was jeopardized by a powerful group with special interests. It is not far off to think that they would manipulate Kass’ position in order to aid their own agenda. It furthermore illustrates how an abuse of language is connected with an abuse of power. What appears as truth is in actuality well concealed propaganda. As Joseph Pieper reminds us, “propaganda in this sense by no means flows only from the official power structure of a dictatorship. It can be found where ever a powerful organization, an ideological clique, a special interest, or a pressure group uses the word as their ‘weapon.’” (12)
In the end the court decided to give custody of the embryos to the fertility clinic, determining the “death or unforeseen circumstances” clause in the contract to be applicable to this situation. While the wording of the contract is undoubtedly debatable, the significance of this case lies in the courts strong dependence on contract, to the point that they do not even consider the “pre zygote” as having a special interest or respect. This decision is an offshoot of the Davis case and is at the same time one which moves, through choice of language, even further away from the true center of debate: the ethical consideration due to the embryo.
Currently there is no definitive legislation on the federal level concerning the status of the “frozen embryos.” On the state level, the legislation varies, but for the most part embryonic disposition cases are a grouped in with contract law. According to Clark Forsythe, President of Americans United for Life, “embryos are stranded in a sort of ‘no man’s land.’” Ultimately, “for embryos, contract law governs.”(13) On the local level, “with the exception of statutes in Louisiana, most statutes are geared toward the respective rights of those donating and receiving embryos, rather than the embryos themselves.”(14) Although there are more recent embryo disposition cases to draw from, the landmark cases Davis v Davis and Kass v Kass are major players in this present dilemma. They will most certainly play a role what happens in legislation concerning 400 million cryogenically preserved embryos (as of 2002)(15) currently left in fertility clinics without genetic parents to claim them. Because the IVF process is costly and involved, the general practice is harvest and fertilize as many as possible at one time, and preserve the excess embryos for later implantation. Often parents decide not to implant the rest of embryos, leaving them up for either adoption or research. In both Davis v Davis and Kass v Kass the ruling favored fertility clinics or research institutions. The deceptive terminology and vested interests present in both of these cases have served make the status of the early embryo a contentious or uncertain matter. Clarifying and remaking the present image of the early embryo, now at the forefront of public debate, is the only way in which the debate can continue in an honest and open manner.
(1) See Pieper, Josef. Abuse of Language, Abuse of Power. Trans. Lothar Krauth. San Francisco: Ignatius Press, 1992.
(2) Kass v Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998), p 1.
(3) Ibid, p1.
(4) Ibid, p 8.
(5) Ibid, p 7.
(6) Kass v Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350 (1998), p 6.
(7) Ibid, p 7.
(8) Upchurch, Angela K. “A Postmodern Deconstruction of Frozen Embryo Disputes.” Connecticut Law Review 39.5 (2007): 7.
(9) Upchurch, Angela K. “The Deep Freeze: A Critical Examination of the Resolution of Frozen Embryo Disputes Through the Adversarial Process.” Florida State University of Law Review 395 (2005): 406.
(10) New York Civil Liberties Union. 1998. American Civil Liberties Union. 29 July 2008. <http://www.nyclu.org/rrp_biennialreport.html#Introduction>.
(11) Ibid.
(12) Pieper, Josef. Abuse of Language, Abuse of Power. Trans. Lothar Krauth. San Francisco: Ignatius Press, 1992.
(13) Forsythe, Clark. “Embryo Adoption: Leftovers? Or one of a kind?” Americans United for Life: Defending Life 2008. Chicago: Americans United for Life: 2008, 443.
(14) Forsythe, Clark. “Embryo Adoption: Leftovers? Or one of a kind?” Americans United for Life: Defending Life 2008. Chicago: Americans United for Life: 2008, 444.
(15) See the RAND-SART report, < http://www.rand.org/pubs/research_briefs/RB9038/index1.html>.
|
