The Story: A state judge in Virginia issued a preliminary opinion that frozen human embryos can legally be considered property, or “chattel.”
The Background: A divorced couple in Virginia are in a legal dispute over two frozen embryos that remain in storage. The woman wants to implant the embryos and raise the children, while the man objects. Prior to their divorce, they signed a statement by the IVF clinic titled “Legal Statement—Embryo Ownership” in which they chose to “own” any embryos jointly. The woman later attempted to claim the embryos as “personal property”; the man says they can’t be property since the law forbids embryos from being bought or sold.
The judge hearing the case initially sided with the divorced husband, ruling that because embryos couldn’t be bought or sold, they couldn’t be considered as “goods and chattels” and therefore the divorced wife had no recourse under that law to claim custody of them.
But the judge was asked to reconsider—and he did. He applied a pre–Civil War law pertaining to custody disputes involving slaves and said he found parallels that forced him to reconsider whether the law should apply to embryos. The judge states in his preliminary opinion that “the court was unable to find any Virginia law prohibiting the purchase or sale of human embryo, nor has either party cited a federal law prohibiting the activity. As there is no prohibition on the sale of human embryos, they may [be] valued and sold, and thus may be considered ‘goods or chattels’ within the meaning of Code § 8.01-93.”
What It Means: “It’s repulsive and it’s morally repugnant.”
That was the reaction to the judge’s ruling by Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics and an expert in reproductive technology law. But Crockin doesn’t think all human embryos are human persons, so it’s unclear why she has a strong objection to the ruling.
There are, after all, only three broad categories into which we can classify human embryos: parts, persons, or property. A human embryo must be an intrinsic part of a woman’s body, a human person, or nonperson property which women (and occasionally men) have the right to dispose of as they choose.
Since the DNA of the fetus differs from the mother, it couldn’t be considered a part of her body even if she was pregnant. But that category wouldn’t apply anyway to embryos that are in cryopreservation (i.e., frozen) in IVF clinics. So such embryos must either be persons or property. For those, like Crockin, who deny all human embryos are persons, they must recognize they’re property—“goods and chattel.”
This isn’t a new discovery. Sherry F. Colb, a law professor at Cornell University, argued in 2005 that prior to a baby’s birth, property law takes sufficient account of the various interests at stake in abortion and fertility medicine (all emphasis added):
Two contexts in which the distinction between a “person” and a non-person can nonetheless matter a great deal are abortion and fertility medicine.
In the case of abortion, the person who “owns” the putative property is the very person who seeks to destroy it (presumably with the help of a medical professional). Therefore, under ordinary circumstances, there will be no one to bring an action for violation of a property right.
In the case of fertility medicine too, the people who decide the “fate” of the property are typically the owners (the people from whom the eggs and sperm are taken or their designated beneficiaries). They can implant as many embryos as they wish, on the advice of a doctor, and they can freeze the ones they do not implant for as long as they like. Again, if the embryos are destroyed, their owners will have ordered that destruction and thus cannot complain.
That is one difference between persons and property: you can give up your right to sustain a piece of your property, but you cannot do the same on behalf of another person.
Many people, including far too many Christians, deny the personhood of early unborn life, especially life created in IVF clinics. Yet they still feel uncomfortable when judges and law professors follow the logic of abortion and talk about humans—even in the embryonic and fetal stages of life—as being legally treated as personal property. The reason it makes them squirm is that it reminds them of the horrors that occur when we treat a class of “nonperson humans” as chattel (“a catch-all category of property associated with movable goods”).
Although abortion advocates don’t like it, the Virginia judge simply made the obvious connection between treating human embryos as chattel and chattel slavery.
Prior to its abolition, slavery in the United States was often referred to as the “peculiar institution.” The phrase wasn’t used by Southerners because they considered chattel slavery to be unusual but rather because the English word “peculiar” is derived from the Latin peculiaris (personal property). While the concept of human beings as personal property may seem anachronistic, that’s the same semantic and conceptual shift required to justify denying the natural right to dignity and life of the unborn.
It took almost a hundred years from the birth of our nation until black Americans were recognized as fully human rather than as mere property. How long will it take before our country acknowledges the same dignity and personhood of the unborn? How long until humans in the earliest stages of life are recognized as belonging to God and not to the new peculiar institution?
The Gospel Coalition