Human embryos: Property or persons?

A judge ruled last week that a San Francisco woman’s frozen embryos must be “thawed and discarded” against her wishes. The woman sought to gestate and raise the embryos, but her ex-husband, with whom she created the embryos through in vitro fertilization, wanted them destroyed. The couple had signed a consent form indicating that the embryos should be destroyed in the case of divorce, and Superior Court Judge Anne-Christine Massullo decided that the agreement is legally binding.

Massullo writes: “It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.”

Legal disputes over the fate of frozen embryos—and over who “owns” them—seem increasingly common. A high-profile conflict is ongoing between actress Sofia Vergara and her ex-fiance, Nick Loeb. “When we create embryos for the purpose of life, should we not define them as life, rather than as property?” asks Loeb in a New York Times op-ed.

This is the fundamental issue at stake. The embryos in these legal cases are treated as property. They are treated as things. Things have merely instrumental or extrinsic value. We may use them for our own purposes or discard them if we feel like it. Things may be owned as property.

Persons, by contrast, have intrinsic value: they are valuable in themselves. They have rights. They are not objects to use but individuals whom we must respect. The great philosopher Immanuel Kant famously wrote: “Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means to an end.”

Should we treat human embryos as property or persons?

Embryos are living human organisms (human beings) at the embryonic stage of their development. Under our law, however, they are not treated in the same way as older human children (infants, toddlers, adolescents). Simply being human is insufficient for protection. Human beings during the earliest developmental periods are not considered persons. All of us (at least those born after January 22, 1973) were once “non-persons” by law.

Our current legal situation, then, has effectively divided humanity into two categories: persons and things. Some members of our species are persons whom we respect and some members are things that may be owned, used, or killed by other members (those who do qualify as persons).

This should be alarming. As philosopher Christopher Kaczor observes, every instance throughout history in which such a division of humanity was implemented (e.g., slavery, genocide) is now recognized as a horrific moral mistake. Every single time. If those who today deny the value of human embryos are correct, it marks the first time in the history of the world that the division of human beings into persons and property is not a moral disaster.

What is the justification for this current discrimination? Embryonic human beings are tiny. They are less developed. They lack the cognitive abilities of older members of our species.

But none of these differences are morally significant. Big people are not more valuable than small people. A teenager does not have a greater right to life than a less-developed five-year-old. A toddler, who is self-aware, does not deserve more respect than a newborn baby, who cannot yet exercise higher mental functions.

Intrinsic value doesn’t depend on age, size, or ability—any more than it depends on gender, race, ethnicity, or religion. When we treat some human beings as property, we prioritize differences that don’t matter while dismissing the one characteristic that human beings have in common: We are all human. We are all the same kind of being. And that’s what matters.

Human beings by nature are persons rather than property. We ought to treat our fellow members of the human family accordingly.