Mother Jones is a left-wing American magazine, named for Cork woman Mary Harris Jones, "grandmother of all agitators", who emigrated to America and became a union organiser and children's advocate.
On the cover of the current issue, the main headline reads "Icebox Orphans" beside an image of an ice-cube tray. Each section of the tray contains either a tiny iced-over baby or a little running figure. A feature article by Liza Mundy explores the extraordinary moral problems posed by almost half a million frozen embryos being held in indefinite storage in the US.
Most people faced with the dilemma of what to do with so-called "surplus" embryos experience "moral paralysis". In short, they delay making any decision at all as to how to dispose of them. Mundy is writing from a broadly pro-choice stance, but says "IVF allows many patients to form an emotional attachment to a form of human life that is very early, it's true, but it is still life, and still human. People bond with photos of three- day-old, eight-cell embryos. They ardently wish for them to grow into children."
The experience of IVF changes people in unexpected ways.
What to do with frozen embryos becomes particularly thorny in the case of disagreement between former partners or parties to the fertilisation. While the case currently before the Irish High Court involving a separated couple demands the wisdom of Solomon, cases in the American courts make it seem relatively straightforward. In another article in the same magazine, details are given of situations where the egg donor was the former live-in lover of the birth mother. Other cases concerned surrogates who have refused to surrender babies and of parents who used a surrogate but declined to take responsibility for the resulting twins. No doubt cases coming before Irish courts will become increasingly complex, too.
The court has chosen to deal first with the issue of consent in this current Irish case, and to set aside for the moment the wider issue as to whether the embryos have a right to life and perhaps even to independent representation. It appears to be a very reductionist approach, given the emotional minefield that the separated couple are currently traversing. The mother in the case regards her embryos as siblings of her two other children. The father wishes them to be treated with respect, but has no desire to become responsible for other children as he is now over 40.
Much of the argument by the counsel representing the father has hinged on the issue of "forced parenthood". In other words, is it unreasonable to ask a man to take on responsibility for children in a situation where he freely entered into their creation, but his relationship with their mother has broken down? Of course, the husband's counsel would object to the use of the term "children" in this context. They are not children, he states, but embryos.
But what exactly is an embryo, and what rights does he or she have? Are they "clumps of tissue" to be brought into being at the will of their parents and to be disposed of as the parents see fit, or are they human beings at the very earliest stage of development? In this case, the mother has a very compelling "Exhibit A", a daughter who came into being through IVF, who started life in exactly the same way as the three remaining embryos. No matter where our fertilisation took place, there is no human being among us who was not at some stage an eight-celled being, as tiny and as helpless as these embryos. (And yes, I know that embryo is not the correct biological term, but it is the term popularly used.) Biologically, it is crystal clear that life begins at fertilisation. The embryo is clearly human. What is in dispute is what status that human life should have. In the US, the state of Louisiana affords the greatest protection to the embryo, but pro-choice ethicist Alta Charo compares the status of Louisiana embryos to that formerly assigned to slaves: not fully human under the law, but deserving of some rights. That alone should give us pause. Laws that enforced slavery and second-class citizenship for women were once held in place by similar arguments to those made about embryos.
It was conceded that both women and slaves were human, yes, but inferior to the norm, that is, the white male. Arguments that literally dehumanise the embryo ignore the reality that we are all in need of nurture in order to progress through the life stages of embryo, foetus, baby, child, adolescent and adult, and finally, for many, dependency once again.
It is interesting that even a pro-choice writer in Mother Jones criticises the fertility profession for encouraging the idea that embryos are merely multi-celled clumps of tissue, saying that they are "more complicated and emotionally fraught". At the moment, Ireland has no legislation, and it would do well to reflect on the fact that many of these dilemmas could be avoided by following Italy's legal model. In Italy, only three embryos may be created and all must be implanted immediately. The question of stored embryos never arises.
Some commentary on the case has presented the mother as irrational for wanting another child or children, or perhaps even vindictive in wanting the father to take responsibility for more children. There is another perspective, that the mother is almost heroic in her commitment to her children, which already exist, albeit in embryonic form.
Her husband may not wish to acknowledge it, but he is already a father to these embryos. He made his decisions about procreation when he agreed to IVF.
Given the fact that a society is judged on how it treats the weakest and most vulnerable, surely in this case, the mother who wishes to give these embryos a chance of long life should be the voice that is heard? Yet sadly, given the implications for the assisted reproduction profession, not to mention potentially lucrative industries based on research on embryos, confidence cannot be high that the mother's voice will prevail.