« Sex, Lies and Confidentiality Agreements | Main | 4th Annual Law and Society CrimProf Shadow Conference: Logistics and Nov. 12 deadline »

Wednesday, November 02, 2011

Stem Cells, IVF, and Abortion: Is There a Right and Left Position?

This is my third post inspired by the Mississippi Personhood Amendment, and this one turns to the normative issues.

Many people who identify as pro-life as to abortion, oppose stem cell derivation involving the destruction of pre-embryos (or “embryos” simpliciter if you prefer, language is power), and often discard of embryos as part of IVF. Many people who are pro-choice by contrast oppose prohibitions on abortion, stem cell derivation, or IVF embryo discard.  What I try to show my students in the classes I teach, and I want to argue here, the three issues do not necessarily go together and the terrain is more complicated than the way it is usually presented.

First, for the left. As Judith Jarvis Thompson most famously tried to show in her (still quite controversial) work, support for an abortion right is not necessarily inconsistent with recognition of fetal personhood. That is, even if one believes fetuses are full persons, one can still support a right not to be a gestational parent (to use my terminology) for women that stems from bodily integrity or perhaps autonomy.  As I have argued, as a normative and as a constitutional matter recognition of a right not to be a gestational parent does not necessarily imply recognition of a right not to be a genetic parent, which suggests that the abortion right and the right to engage in IVF discard are quite severable because prohibiting the destruction of excess IVF embryos does not require forcing unwanted gestational duties on anyone. The disconnect is even stronger when it comes to stem cell derivation, where none of the “rights not to procreate” is involved. That means that one can very happily be pro-choice as to abortion, and prohibit embryo discard or destruction via stem cell derivation.

Second, as to the right....

Let us assume the pro-life position on abortion depends on the view that fetuses are persons or close enough to persons that their protection trumps the interests in avoiding gestational parenthood of pregnant mothers. That position does not imply that the destruction of embryos at all stages of development is also equally problematic. A lot depends on one’s theory of why fetuses should be given personhood or rights claims against destruction (on this issue I highly recommend Cynthia Cohen’s chapter on personhood in her book on stem cells). If your theory of personhood is about the actual possession of criteria X, on some ways to fill in “X” – such as fetal pain, which I have written about here – fetuses late in gestation may possess the criteria but not embryos as the stage they are discarded/destroyed as part of IVF or stem cell derivation.  Similarly, many have defended a 14-day or later view of personhood, where personhood begins on the 14th day after fertilization where embryonic twinning – the potential for an embryo to become monozygotic twins – ends. This argument is usually premised on problems with numerical identity. If the embryo was a person before day 14, but twins into two people, which one was it – person A or person B? Many find this argument persuasive, although certainly there are objectors (for example, those who say that if a stick is broken into two that does not mean it wasn't originally one stick, though others doubt the analogy).  For present purposes all I want to suggest is someone who opposes abortion can thus fairly easily consistently oppose prohibition on destruction of early embryos.

None of that means that zealots on either side are capable of being nuanced here. The cultural cognition project, if anything, suggests the opposite.  Still I hope that judges and academics are better poised to see the nuances here.

Posted by Glenn Cohen on November 2, 2011 at 10:36 PM in Article Spotlight, Culture, Current Affairs, Gender, Religion | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Stem Cells, IVF, and Abortion: Is There a Right and Left Position?:


You may find this article interesting (forthcoming in the Berkeley Journal of Gender, Law & Justice):


Posted by: anon | Nov 11, 2011 6:41:49 PM

Andrew, I am glad you found it helpful. One good place to start reading about this argument -- which summarizes Thomson's argument and then the scholarly debate in the several decades thereafter -- is Bertha Manninen, Rethinking Roe v. Wade: Defending the Abortion Right in the Face of Contemporary Opposition.
2010. The American Journal of Bioethics 10(12):33-46
Available at
This is a good quick introduction with lots of great summaries of the major positions in the literature.

Posted by: I. Glenn Cohen | Nov 3, 2011 2:05:57 PM

This is very interesting, thank you. I tend to fall into the pro-choice but fetuses-are-persons camp (though honestly I'm more agnostic on the personhood question, but as to the classification and why it should matter). But I wasn't aware that a right to discard embryos was sometimes predicated on a right to be free from genetic parenthood -- that's definitely not an argument I could support. And the stem-cell question honestly is quite troubling. Anyways, thanks for the reference to Thompson's work: I wasnt aware of any serious scholarly attempt to defend abortion while admitting the personhood issue. Do you have a suggestion for where to start in reading her?

Posted by: Andrew MacKie-Mason | Nov 3, 2011 12:46:32 PM

The comments to this entry are closed.