The story runs back to the 1930s, and it was told to me by a late colleague at Amherst. He had been teaching at Ohio State University, and he had been asked to act as the lawyer for a maid who cleaned the offices. She was in the midst of a divorce from a man who was a janitor working on the same staff, and they were arguing over the custody of their child. In a hearing in the judge’s chamber, the woman made her claim: She had, after all, carried that child, in pregnancy, for nine months. The father, an unlettered man, affected puzzlement and put his argument in the form of a question: “Judge, let’s say a guy puts a penny into a machine for a gumball. When the gumball comes out, who does it belong to?”
All of this came back suddenly in a meeting of the Life Forum in Washington, D.C., just before the March for Life in January. The Forum is a gathering of leaders from the wide spectrum of pro-life groups, and for about ten years it has been meeting quarterly. One of the sessions involved a panel on the question of adopting the embryos that are drawn from in vitro fertilization and tucked away in storage. Fr. Richard Hogan from Minneapolis (and Priests for Life) made clear that the Church rejects the very notion of in vitro fertilization. This is no mere shift in technique for the generating of offspring; it is one of those subtle changes that envelops the act with a notably different meaning: Instead of begetting, there is production. Instead of viewing children as gifts, they are seen as things to be manufactured, stored, or destroyed, as they meet the wants of those consumers who are ordering them. The vice is only compounded when people start raising the question of who “owns” the embryos that are frozen and stored. For reasons running deep, our law has been averse to the notion of treating human beings as a species of property; and it would be wise not to erode that wholesome prejudice.
Still, for Fr. Hogan and the Church, there remained the question of those distinct human lives cast up in this project of in vitro fertilization. If there are embryos put in storage, embryos that can be salvaged, nurtured, and protected, should someone not be in a position, legitimately, to come forward to act as a guardian? The inclination of the Church was to confirm the justification for someone going in this way to the rescue. But that rather simple mandate to rescue the innocent life set off the most unexpected debate, even in this circle of pro-lifers.
One ethicist, with a Lutheran background, was wholly against any such policy of adoption, as a form of complicity that merely sustains an evil practice. The evil in this case was not in vitro fertilization, for he was inclined to accept this novel process if conducted by a husband and wife as their only means of bringing forth children. But in other instances, this scheme of procreation absorbed strands of deep corruption. It could involve the mating of strangers, even multiple strangers, and at times in exchange for cash. As an occasion for adoption, all of this was strikingly different, he thought, from the typical case of the unmarried woman who conceives “by accident.” She is compelled to encounter in turn the series of emotions quite emphatically human: the embarrassment, the shame, the sense of tragedy and loss in giving up the child. None of that would be present in the case of donating eggs and sperm with cool reckoning and intention—and with that sense of manipulation, manufacturing a child.
That slant on the problem was strangely reinforced by a participant who for years had headed an important agency for adoption. He was Catholic, but he put himself quite passionately at odds with Fr. Hogan, with a long list of objections rising to indictments. He doubted, in the first place, that the project was even practicable. The current estimate, he thought, was about $55,000 to implant an embryo and bring it through birth. He did not think there would be many people willing to put up that kind of money with only one chance in four of delivering a live baby.
But then, turning to the moral complication, he feared that this arrangement might begin to break down the moral wariness that is still felt among some people in regard to in vitro fertilization and surrogate pregnancy. To extract from these moral burlesques some redeeming value runs the risk of encouraging certain people of slender means and doubtful judgment to rent their wombs. And besides, he said, why divert people in this way from the powerful good that may be done in adopting a child “already alive,” among the many children who desperately need adoptive parents?
“Already alive?” The question involved the protections to be cast over embryos. Conception had already taken place. Did this worldly man, this mature Catholic, think that the embryo was not yet “alive,” or not yet a distinct being? If so, he was at odds with the anchoring premise held by everyone in that room, in their opposition to abortion—or, to take it from the other side, in their determination to protect the person who comes into being, as a distinct entity, at the time of conception. It should have been needless to point out, at the same time, that he would have been at odds, too, with the deepest premises of his Church on this matter.
Michael Schwartz, a veteran of Capitol Hill and an unsinkable pro-lifer, wondered why there would be more moral hazard in this case than in others: We may seek adoption as a means of protecting the child who is conceived in rape or out of wedlock, and yet, should we really desist from going to the rescue in these cases out of fear that we might only encourage more rape or promiscuity? Was the wrong of the case to be made so utterly contingent on its ancillary effects? To fall into this cast of argument was to back again into the familiar fallacies of utilitarianism, and it could not dislodge the central question: The embryo is, as it is, a distinct human being, utterly innocent. If someone had the means of rescuing that small being, should he really waive the chance of saving an innocent life out of a speculation that he might encourage other people to engage in wrongdoing?
This was notably different from the recent case of people, with more zeal than reflection, seeking to ransom people from slavery in southern Africa. Experience soon confirmed what they should have suspected from the beginning: Their willingness to pay had merely created an incentive, among enterprising businessmen, to capture more Africans and build up their inventory of slaves to be sold.
But there was nothing comparable here, and the problem might yield to a minor thought-experiment: We have seen, under conditions of war, the women of a captured village made available for the sexual use of the soldiers. Let us suppose that the marauding army decided to use these women in breeding. Unless we were under the thrall of utilitarianism, we would not hesitate to pronounce these acts to be intrinsically wrong—wrong in principle—without waiting for all of their extended consequences to come rolling in.
Still, people in the pro-life movement would presumably regard it as wrong to abort the children conceived in this program of breeding. But if that is the case, why should there be any straining over the question of whether it would be justified for someone to protect the embryo marked for discarding? A guardian could take on a temporary custody for the sake of protecting this new, small being, but then the highest service of this guardianship would surely come in placing this child under the enduring protection and nurturance of adoptive parents.
The firm case for protecting the child was made by one participant, an accomplished professor of biology and a serious Catholic, who has written often in opposition to experimenting on embryos. She was confronted by the ethicist, who asked whether she really would legislate an obligation for everyone to come forward to act as an adoptive parent. To this challenge she remarked that no one had suggested such an “obligation”—and she herself, as she said, was not a Kantian.
But it did not require a Kantian to create obligations on this matter. As Aquinas taught, the very logic of morals obliged us to do what is good and refrain from what is wrong. If indeed it would be good and right to preserve the life of an innocent being, and if we had the means of accomplishing that end, there would have to be a presumptive obligation on the part of someone to do what practicably could be done. But before we start assigning obligations to particular persons, there may simply be an obligation on the part of the community more generally to protect these embryonic persons. And once that protection is launched, by institutions, we have time to work out the conditions for arranging adoptions.
Yet, before we get too immersed in sorting out the problems cast up for us by a biology run amok, we may be driven to the recognition that there is something wrong here at the base. The Church, in her large nature, encompasses it all: She would move to protect these unclaimed children, but she would remind the public—with more constancy, and deeper reasons, than any other institution has summoned—that there is something ineffaceably wrong in bringing forth children in this way.