Embryos, injuries, and damages
The demagoguery surrounding last week’s Alabama Supreme Court ruling involving in vitro fertilization (IVF)—incendiary rhetoric being pushed by Democrats to stoke a new fear while making political hay over abortion—deserves refutation. It also deserves an honest look at the incoherence of U.S. law caused by the distortions of almost 50 years of Roe v. Wade.
As some commentators have noted, this case was not brought by pro-life advocates trying to create fetal personhood. It was brought by clients of the clinic who tried to get pregnant through its “services.” Apparently, “a patient wandered into the facility where the clinic stored embryos and dropped several of them.”
So, what happened to those embryos? They ceased being embryos. They were now dead tissue (not unlike the dead tissue we put into coffins).
So, what happened?
Did they “die?” You can’t “die” unless you previously “lived”–and that proposition would make pro-abortionists go ballistic.
Were they “damaged?” Clearly, irreparably.
But do we want to say they’re “damaged?” Damage usually happens to things. I drop a vase and it’s “damaged,” i.e., broken. Do we want to classify embryos as just “things,” not essentially different from–say–the damaged wedding pictures caused when the postman ignores the “Do Not Bend” stamp on the envelope and wedges them into your mail slot?
Things get damaged. Persons get injured. In either event, something happened that shouldn’t have happened, and somebody else might have a claim for compensation. Damages usually can be replaced (e.g., the photographer can reprint the warped wedding pictures). Injuries—not so much: rarely can an injury be repaired “as good as new” and, if that injury is lethal, it can’t be repaired at all.
Those are the questions the Alabama Supreme Court ruling had to face and address.
Some stored embryos were not “gently hurt” (as the pretty euphemism for breaking things goes). So, were they “damaged?” Or “injured?” The aggrieved parents/would-be parents/wanna-be parents (see how our pretending that when life begins is an insoluble question leads to many other questions?) sought compensation. For what did they want compensation? “Damaged” embryos? “Injured” embryos?
Those parents brought suit under Alabama’s Wrongful Death of a Minor Act. Why? Most charitably, they wanted to be parents and their embryos were gone. Least charitably, compensation for injuries is, in general, more generous than compensation for goods.
The clinic knew that, too, which is why they contended the Act was inapplicable. The Court had to decide: does that law apply or not?
It said it did. In this narrow set of circumstances.
There are all sorts of narrow sets of circumstances where similar laws have come into play. In 2017, a gunman entered a church in Sutherland Springs, Texas. He went on a shooting spree that resulted in mass murder. A similar question arose back then: how many victims were there? Crystal Marie Holcombe was in her eighth month of pregnancy. When she died, so did her male baby/fetus/clump of tissue. So, were there 25 victims? Or 26?
Could the family of Carlin Holcombe make a claim on his behalf? Sue the gunman or his estate civilly? Sue the gun manufacturer? Claim insurance? Crystal Holcombe didn’t want an abortion. She considered Carlin her baby. Can the law? Or did the law have to pretend he was a “non-person” so as not to upset the “balance” of Roe?
