HOV Lanes, IVF, and Human Personhood

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A woman claimed that her unborn child counted as a person when pulled over for driving alone in a North Texas High Occupancy Vehicle (HOV) lane! She explained, “I just felt that there were two of us in [the car] and I was wrongly getting ticketed.” She argued that under Texas’ new abortion law, a fetus is considered a living being. The woman also claimed “this is a baby” (Texas Tribune). Initially, the woman’s response may seem to be wacky but, upon deeper reflection, it represents a tip of a proverbial “moral baby bottle,” as it were.

This simple traffic incident signifies a tiny piece of a larger highly complex moral, social, political, and legal puzzle when deciding what it “means to treat a ‘fetus’ as a person.” Fetal personhood is embedded in an ongoing deeper philosophical-theological conversation surrounding what is meant by being a “person” and having “personhood.” If you doubt the significance of the topic, then pause for a moment to consider a current controversy that involves In Vitro Fertilization (IVF). [1]

IVF was recently thrust into the national spotlight when the State of Alabama passed a law on February 16, 2024. This law determined that stored embryos are afforded the same legal protection as children under the state’s “Wrongful Death of a Minor Act of 1872.” The law allowed for legal action to be taken against medical professionals who perform IVF. This medical procedure, which is one of several Assisted Reproduction Technology (ART) procedures, often involves embryo loss, which exposes the medical professional to criminal liability for conducting the procedure. [2] 

A cry of protest ensued following the law’s passage and the Alabama Legislature subsequently passed a further bill that gave civil and criminal liability protections to IVF providers for embryo loss or damage during treatments. The Alabama Governor signed this legislation into law on March 7, 2024. You may be wondering why this longstanding medical-technological procedure has suddenly become such a big issue. This recent moral dilemma is linked to a decades-long debate regarding fetal personhood, as landmark U.S. Supreme Court cases make clear.

Since the 1960s abortion opponents had pushed for a Constitutional amendment that defined life as beginning at the point of fertilization. Such a law, if passed, could be used to determine everything from child tax credits to a woman’s liability for child endangerment, if she consumes alcohol while she is pregnant. [3] The recent Supreme Court of the United States (SCOTUS) overturn of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) in the Dobbs v. Jackson Women’s Health Organization (2022) case not only reversed those abortion rights rulings, but threw open the possibility for states to craft far-reaching abortion legislation on fetal personhood. Pro-life advocates, who believe life begins at conception, have long opposed abortion because of the belief that a human person is killed.

IVF fertility treatments are not fail-safe and embryos are often lost, even in the best circumstances. Many fertility clinics practice in a reputable fashion. Fertility clinics also operate within a regulated and unregulated legal zone. Many embryos were lost, in one clinical case, because of the application of a solution that causes fetal growth. Other embryos have simply been discarded. For this and other concerns, it was only a matter of time before the industry began to be scrutinized, in part, along the lines of human personhood. In this sense, “fetal personhood” is a shared link between abortion and IVF. So one may well imagine why a firestorm of alarm was sounded when the Alabama IVF law was passed. [4] The law effectively shut down IVF procedures because doctors feared lawsuits. There are broader ethical implications to the debate about personhood as well.

History. Soon after the advent of bioethics, various theologians, philosophers, doctors, and those within broader culture, began to draw a distinction between “biological life” and “personhood.” They raised philosophical and practical questions as to what constitutes personhood and what moral obligation there may be to those who are determined either to be or not to be “persons.” [5]

Medicine and beyond. Bioethicists provided an argument that “human personhood should be viewed as consisting of a number of specific and unique human functions, which can be summarized as a developed capacity for conscious self-reflective intelligence” (italics mine). They reasoned that embryos and fetuses lack such personhood capacities. The application of such a cognitive calculus to determine personhood became a proverbial ethical slippery slope that was also applied to other situations. According to this definition of personhood, those in a persistent vegetative state, newborns, the irreversibly comatose, and people with dementias are determined to lack moral status. They are considered to be human beings and deserve respect, but they do not have the same moral status as “fully human persons.” [6]

This approach holds implications for the intrinsic value of human life. Of course, there are serious Christian ethical concerns with such a psychological—also termed developmental—view of human personhood. While we simply cannot cover the depth and width of the topic of personhood in this brief article, we can lay important roadwork that will lead to good Christian thinking and decision-making.

First, we should clarify the meaning of "biblical personhood" prior to making decisions about human life across the spectrum, from conception to the end of life. A person is “a human being regarded as an individual.” Personhood refers to “the quality or condition of being an individual person” (OED).

“For early Christian writers, the word 'person' is an expression of the individuality of a human being, as seen in his or her words and actions.” Above all [for these writers], "there is an emphasis upon the idea of social relationships.” A person is "someone who plays a role in a social drama, who relates to others.” [7]

Human beings also are persons with intrinsic God-given dignity. This links to ontology, which is concerned with a “knowledge of being.” [8] Christians are familiar with these discussions, as well as Aristotelian philosophers, but as we have seen above, contemporary bioethics typically examines the nature of “persons” differently than these biblical perspectives. [9]

Secondly, determine your worldview regarding human life and procreation. Consider ART/IVF, for example. Although many of the issues surrounding ART are not addressed directly in Scripture, one’s worldview is critical to formulating convictions regarding parenthood and procreation and the “oughtness” of ART/IVF and its results. On a practical level, Christian families possess a sincere and deep longing to have children but will want to guard against the use of reproductive approaches that conflict with their biblical worldviews. Honor the biblical creation mandate regarding life’s sanctity, the sacredness of marriage, and the goodness of procreation in Genesis 1:28 and 2:24. For example, decide against contributing unused embryos to scientific research or even allowing them to thaw then discarding them.

There is good news! God’s revealed will, scriptural authority, and Christ’s Spirit provide essential and effective guides to ethical decision-making about such technologies and offer principles that provide direction at this contemporary moral juncture. Clear awareness of this important moral concern of personhood leads us to draw several conclusions.

Since we all are travelers on a metaphorical life highway, it is important for us to give voice to our Christian beliefs about personhood (cf. Proverbs 3:5-6, “straight paths”). Christians will choose to remain alert regarding conflicting worldviews such as naturalism, scientism, and technicism, and be ready to offer thoughtful responses and actions. We will continue to view human beings, created in God’s image, to be much more than mere physical bodies, sexual beings, or simple consumers of biotech products. And we will oppose the reduction of human life to a mere commodity. Simply stated, Christians strive to respect persons across the spectrum within the loving boundaries of God’s creation design.

Notes:
1. Assisted reproduction technology (ART) made international headlines in 1978 with the birth of the first “test tube” baby (i.e., IVF, in vitro fertilization, which means fertilization outside the womb). IVF benefits are immediately recognizable for millions of infertile couples—babies.
 
2. The term "assisted reproductive technology" refers to "various medical procedures that are designed to alleviate infertility, the inability of a couple to conceive a child of their own. These procedures include technologies such as intrauterine insemination (previously known as artificial insemination), in vitro fertilization, and surrogate motherhood. For some time, adoption was the only viable way by which an infertile couple could have a child. Yet in adoption the child is not genetically related to either of the parents.” Rae, Scott B. Moral Choices (p. 166). Zondervan Academic. Kindle Edition.
 
3. An Alabama woman, for example, faced harsh criminal charges for using drugs and then suffering a miscarriage. A jury found her guilty, and she was sentenced to eighteen years in prison under a 2013 meth-lab law that considers the emerging personhood of an unborn child (“The Marshall Project,” 09-01-2022).
 
4. A further reason for the upset is the fact that more than 83,000 babies are born each year in the U.S. via IVF. This emotion-laden journey to childbirth via IVF costs an average of $21,600 and is, in itself, a highly complex moral issue. There are regulatory gaps in oversight and families have begun to question the loss of embryos. Lawsuits were inevitable. There also are economic implications if doctors may be found liable for the loss of embryos. IVF treatments generate annually $18-plus billion to the economy. Additionally, political and cultural debates about fertility rights factor prominently into virtually everything related to human procreation.
 
5. James W. Walters, “Moral Status,” in Bioethics, vol. 4. 4th ed. (Gale e-books, A CenGage Company), 2114-2125. Accessed online at https://bit.ly/3gFPOrW. The three primary secular views of personhood are genetic, mental, and developmental. The classic Christian perspective falls under the “genetic” designation. It includes all human beings, regardless of age or developmental stage. Human life from embryos to the eldest human beings are counted as persons. This belief has traditionally been termed “sanctity of life.” The view has an important biologically inclusive view of personhood. Therefore, from conception to whole-brain death, a person has full moral status. The criterion for personhood is, “If your parents are human, ‘you are human.’”

Mental personhood means that an autonomous individual’s brain function warrants the highest moral status. Immanuel Kant is credited with the origin of this perspective. Only moral agents that possessed autonomy and freedom were believed to have moral status (this view excluded women, children, and animals. All three were considered to be deficient in mental capacity). Joseph Fletcher claimed that “neocortical function” was the “cardinal” or “hominizing” trait. See Fletcher, “Four Indicators of Humanhood—The Enquiry Matures” in M. Therese Lysaught & Joseph J. Kotva Jr. On Moral Medicine: Theological Perspectives on Medical Ethics (Grand Rapids, MI: Wm. B. Eerdmans Publishing Co.), Kindle Edition. (See below at FN 9.) Others have postulated a variety of alternatives (see Walters).

Developmental personhood is a variation of the mentalist category and refers to the process of growth toward undisputed personhood (i.e. adulthood). The further along one matures, higher moral status is attained. Any one of these categories has its adherents and opponents, which illustrates the moral complexity of personhood.

Cf. Trystram Engelhardt, 150ff. He speaks of a person in the “strict sense” as one who is a moral agent. He also states that there are persons in the “social sense,” meaning one to whom nearly the full rights of persons strictly are accorded (e.g., young children). There are others who fall into this classification who once were persons, but are no longer, but are still capable of some minimal interactions. There is another classification of persons in a social sense, who are “profoundly retarded” and “demented.” They never were and never will be persons in the strict sense, developmentalists claim.
 
6. See Glen H. Stassen and David P. Gushee, Kingdom Ethics: Following Jesus in Contemporary Context, 2d ed. (Downers Grove, Il: InterVarsity Press, 2016), 421ff.
 
7. Alister E. McGrath, Christian Theology: An Introduction, 4th ed. (Oxford: Blackwell, 2007), 206. “The basic idea expressed by the idea of a ‘personal God’ is thus a God with whom we can stand in a relationship which is analogous to that which we could have with another human person.” There are humans, or “potential humans,” as some will claim, however, who do not fulfill the defined characteristics of personhood.
 
8. See John P. Newport, Life’s Ultimate Questions: A Contemporary Philosophy of Religion (Dallas: Word Publishing, 1989), 444, 448-450. Newport writes of Aristotle’s conception of a “first mover” and how philosophy moves from that philosopher to the conception of God as "first cause and unmoved mover.” The ontological argument represents one of the rational arguments of origins. Cf. also Aristotle’s Metaphysics, Book XII.
 
9. Peter Singer, Practical Ethics, 73. Singer refers to what he describes as Joseph Fletcher’s “Indicators of Humanhood.” See M. Therese Lysaught & Joseph J. Kotva Jr. On Moral Medicine: Theological Perspectives on Medical Ethics (Grand Rapids, MI: William B. Eerdmans Publishing Co., 2012), 334. Fletcher would later narrow the list down to one indicator, which is “neocortical function.” (See above at FN 5.) The point is that some bioethicists began to recast historical conceptions regarding human life and personhood. They drew a distinction between the biological (human) and psychological (person). They came to believe that a “being’s mental and behavioural [sic] capacities” made it a person. This view also made it possible for non-human species to be classified as “persons.” It also made it possible to declassify certain humans as “persons.” Cf. Mary Anne Warren, Moral Status: Obligations to Persons and Other Living Beings (New York: Oxford University Press, 2000), 93-94.
 
For a different perspective, see Alfonso Gomez-Lobo, Bioethics and the Human Goods, 27-35. See also Edmund D. Pellegrino and David C. Thomasma, The Christian Virtues in Medical Practice (Washington D.C.: Georgetown University Press, 1996), 140-143. See Paul Tournier, The Meaning of Person (Hymns Ancient & Modern Ltd., Reissue Ed, 2012).