Flashback: The Abortion Debate

In anticipation of the shutdown of Apple’s MobileMe service, I am re-posting some of my old blog entires before they become harder to retrieve.

This entry was originally posted on July 6, 2005.

In my “politics of death ” blog entry, I hinted at this point, and I would like to elaborate on it a little bit.

It’s always interesting to read a Supreme Court opinion that may not be popular.

For example:

Kelo v City of New London — which held that eminent domain could extend to areas that are not blighted, solely for economic development — sided with the City of New London for two reasons: first that the court consistently sides with local officials, who may know better than national officials about what is good for a locality, and second, because the city’s plan did not favor a single developer. (In other words, just because WalMart might want to build a store where your house is, that’s not enough to get your local town to condemn your house…)

Texas v Johnson — which held that flagburning is constitutionally protected free speech — questioned why prosecutors didn’t charge Mr. Johnson with other crimes for which he was undoubtedly guilty (inciting a riot, etc…)

And Roe v Wade recognized on its face that there would be people with moral objections to it, however the judgment itself would be based solely on the constitution and that the 9th through 14th amendments, through precedent, would require that laws banning abortion be unconstitutional.

(Incidentally, you can search for all three of these supreme court opinions, along with all of the other opinions, at Cornell’s Legal Information Institute website.)

My problem, though, with the overall abortion debate is that it’s no longer a debate. Neither side is willing to accept any type of compromise with the other, and that’s truly not helping us get anywhere. As far as I’m aware, nobody’s standing on the corner screaming “We’re not performing enough abortions!” On either side of the debate. Not even those who would stand to profit by performing more. It’s just not that lucrative.

The only solution to this issue, therefore, is to fundamentally alter the issue itself. Why not encourage science to produce a process whereby a zygote/embryo/fetus can be removed from a woman’s uterus — with the same level of safety to the mother — without killing the aforementioned unborn? For the purposes of this discussion, we’ll call the process “removal.” For the remainder of this essay, I will refer to the removed zygote/embryo/fetus as a ZEF.

We can assume that the processes would be fundamentally different, depending on how far along the pregnancy is, and they may not even be viable at the same time. I’m fine with that, so long as at some point, all pregnancies can be terminated safely this way.

Once the process (or processes) is (are) tested and deemed safe, the discussion would immediately turn to what is to be done with the removed ZEF, and additional medical and scientific procedures may be needed for some of them. Each one raises ethical and legal concerns that we previously didn’t have to address with traditional abortion.

One option — like it or not — is the destruction of the ZEF. The only reason to favor removal over abortion if this is going to be the end result would be if the removal process is ultimately safer to the mother than abortion. Presumably, the abortion debate would morph into a debate over whether or not the ZEF should be destroyed following the removal. With other options available, though, this would not happen very often.

A second option would be to allow the ZEF to be donated to additional scientific research, akin to stem cell research today. This will have varying degrees of ethical concerns depending on your stance on this type of research and it would also vary between whether the pregnancy was terminated after a month, or six months. Even in the absence of stem cell research, what if the unborn child is diagnosed with some genetic disease? Would it be ethical to allow the removal for research to combat this disease? There is much to be thought about with regard to this matter.

Option number three would be to freeze the ZEF cryogenically for later use. I kind of figure this one would be the option of choice to the 15-year-old girl who gets pregnant, accepts that she might want children, say, ten years later, but would prefer not to have the baby now. This assumes the development of a technology whereby the ZEF can be re-implanted in the mother’s uterus. Might as well be a part of the research being funded. Among the issues raised here are the proper methods for safely freezing the ZEF, the costs associated with storage, and certain intangibles such as whether or not the mother follows through on the decision to have it re-implanted later, or even if the mother dies before having the opportunity to re-implant it. (In the event of the death of the mother, presumably the ZEF would be a part of her estate. For a young girl, here estate might not be very large, so certain protections must therefore be built into probate and estate law.)

The fourth option would be to bring the ZEF to a full gestational term and have someone else raise that child. As I termed it in my “politics of death blog” from a few months ago, we can call it a pre-birth adoption. There are three sub-options — all of which would require a significant amount of additional research not unlike the research needed in the third option — that may be viable depending on how mature the ZEF is.

Option 4a would be to bring the ZEF to gestational term outside of anyone’s womb, at which point it could be adopted and/or placed in foster care, not unlike the current systems.

Option 4b would be to implant the ZEF into the womb of a woman who would otherwise adopt the child once it is born. We would need a fair amount of legal disclosures and agreements, specifically with regard to protecting both sides in the event of a miscarriage, but we could certainly build on the existing adoption contracts.

Option 4c is alternately the most fascinating and troubling. It is the situation where, for reasons that range from health to ability of the potential adoptive mother, the ZEF is implanted in the womb of a third party, a surrogate. In this situation, we would likely need to combine the contracts that currently exist for adoption, plus the contracts that currently exist for surrogate mothers, all with similar protections as we are asking for in option 4b. We could therefore find ourselves in a contract that involves three separate entities: the biological mother (and father, as necessary), the surrogate mother (and any relatives who would take an interest in it), and the adoptive parents once the child is born.

For all three variations on option four, is there room for freezing the ZEF, as in option three, before bringing it to term?

I’m not pretending to have all of the answers here, especially since a lot of this governs minutiae of the law and I am not seasoned in this aspect of the law. But if the government were willing to promote this degree of scientific research, wouldn’t it be nice to actually open up the debate again, and possibly find a reasonable middle ground? Nothing else seems to be working….


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