Where is the Embryo? Why Location makes all the Moral Difference

by Dr. Nileema Conlon Vaswani in

Why is it that a man who makes a woman pregnant cannot require that she undergo an abortion but a man who contributes his sperm to the creation of an embryo can require that his ex-partner not use it even though it was created with her eggs as well? In the first case, the embryo is inside the womb; in the second case, it is outside the womb. Does location have any moral force? One cannot help but feel sorry for Natalie Evans. She has not only had to battle cancer and the infertility that has resulted from it but also had to face a situation where the embryos that were created just before her ovaries were removed are not hers to use any longer. These embryos were created using her eggs and Howard Johnston's sperm. Once the couple split up, Mr. Johnston withdrew his consent for the embryos to be implanted and asked that they be destroyed. Ms. Evans fought to use the embryos without his consent but lost her case. The law requires mutual consent for the implantation of the embryos and allows either party to withdraw consent right until the time of implantation. One way to explore the moral relevance of "location" is to consider a parallel scenario in cases of traditional pregnancy. If a woman becomes pregnant and then separates from her partner, what happens to the embryo is a matter for her to decide. In legal terms, the ex-partner can ask neither that she continue with the pregnancy, nor that she terminate the pregnancy. The reasons for this are clear. A woman has the right to decide what happens to her own body. Those who oppose abortion would dispute this but that is a debate that compares the rights of the unborn child to the rights of the mother. Here, the debate focuses on the rights of the mother versus the rights of the father.The right not to be required to have a termination is quite different from the right to have a child. The right to have a child is not an unconditional right; in most cases, it is conditional upon another person. A single woman, for example, cannot demand of another man that he help her have a child and a single man cannot demand of a woman that she carry a baby for him. The right to decide what happens to one's own body is a protective right, one that protects the woman against an invasive procedure, i.e., a termination, should she not want one, but it does not impose an obligation on another person to help her bear a child.In addition to the fact that a termination is invasive, the woman has "carrier rights". This means that even in cases where termination is a non-invasive procedure as in cases where tablets could be used to terminate the pregnancy, she has the final word simply by virtue of the fact that she is the one carrying the foetus.

Notice, though, that carrier rights only exist once the woman is actually the carrier and this is why they do not apply to Natalie Evans. The reason why a man cannot demand that his ex-partner have an abortion is because she is actually carrying the child. For the same reason, he cannot prevent her from having the pregnancy terminated. On the grounds of protection to one's own body and the rights accorded to a woman as the carrier, she has the ultimate say. As Natalie Evans is not the actual carrier but only a prospective carrier, she cannot have the same rights as someone who is actually pregnant.

Consider what might happen if the situation were reversed and it were Howard Johnston who wanted to use the embryos without the consent of Natalie Evans. If he argued, as she has done, that the embryos were his only chance to become a father, he would not be able to require that the embryos be implanted in Natalie or in any other woman. Natalie would not be obliged to carry his child because she has the right to decide what happens to her own body, a right that includes not being forced to become pregnant. More relevantly, though, she would also have the right to deny the implantation of the embryo in any other woman who was willing to have it implanted in her. This right would be based on the right of ownership, i.e., the embryos were created from eggs that were hers. Similarly, however sorry one might feel for Natalie, Howard has the right to deny her the use of the embryos because they were created from his sperm.

The case of Natalie Evans, Howard Johnston and their frozen embryos is a story of conflicting moral rights. Natalie has the right to become a mother, just as Howard has the right not to become a father. Since these two rights cannot co-exist under the current circumstances, the only way to resolve the issue is to rank these moral rights.

In cases of traditional pregnancy, a man's right not to become a father once he has made his partner pregnant are overridden by the rights of the mother. These are rights that she has as the carrier of the embryo and rights that protect her from invasive procedures that she does not want to undergo. Similarly, in the case of an embryo outside of the womb, the man's rights not to become a father override the woman's rights to become a mother. As she is not the carrier, she does not have carrier rights. And as not implanting the embryos does not require her to undergo an invasive procedure, she does not have rights on grounds of avoiding an invasive procedure.

It is unusual for physical location to have so much moral bearing on an issue but, as we have seen in this case, where the embryo is located changes the moral landscape of the case considerably. An embryo inside the womb favours the rights of the woman whereas an embryo outside of the womb favours the rights of the man or at least places his rights on a par with those of the woman.