FETAL RIGHTS

Should a Fetus have rights?
Newsweek
June 2003

IMG: June 9, 2003 Cover “IT FELT LIKE IT had gone all the way through me,” says Marciniak, now 39. The baby, whom she’d already named Zachariah, had seemed fine on a prenatal visit just the day before, she says. But when she arrived at the hospital that night, doctors couldn’t find his heartbeat. Marciniak pulled through, but the baby did not.
Because Zachariah was not considered a “born person,” prosecutors could not charge Black with homicide. They attempted to try him under an old state law banning illegal abortion, but Black’s lawyer argued that the baby would have been stillborn anyway. In the end, a jury convicted Black of reckless injury and sentenced him to 12 years in prison. Though Marciniak has long supported abortion rights, she became furious when she discovered that the law didn’t protect her unborn son—and that women’s groups wouldn’t back her quest for a state law punishing his killer. Now she is allied with the National Right to Life, appearing in an ad for the federal Unborn Victims of Violence Act. “There were two victims,” Marciniak says. “He got away with murder.”

PARENTAL CONFLICTS
Halfway across the country, in Connecticut, Pieter and Monica Coenraads want to defend their child, too. But as observant Roman Catholics, they’ve had to confront a question that strikes at the core of their religious and moral beliefs: Monica, 40, is so opposed to abortion she decided to skip amniocentesis in all three of her pregnancies, even though such testing is standard in older mothers. Whatever the test results, Monica knew she would never choose to terminate a pregnancy. Their first daughter, Chelsea, was born apparently healthy, but at the age of 2 she was diagnosed with Rett syndrome, a debilitating neurological disorder (which would not have been picked up by the amnio in any case). Now 6, Chelsea thinks clearly but cannot feed herself, walk without assistance or speak.

The Coenraadses believe that the only hope for their daughter and for the estimated 15,000 children like her is embryonic stem-cell research—which requires destroying human embryos. “My conscience tells me that for me personally having an abortion would not be the right thing to do. That same conscience tells me that stem-cell research is needed,” says Monica, who now helps run the Rett Syndrome Research Foundation from her dining room.

The politics of the womb have never been more personal—or more complicated. When abortion foes are willing to destroy embryos for lifesaving medical research and abortion-rights supporters are willing to define a fetus as a murder victim, the black-and-white rhetoric of the 1970s abortion wars no longer applies. People on all sides of the debate are confronting long-held beliefs, often sending their most private emotions on a collision course with their political principles. With the Laci Peterson case making headlines and Congress poised to tackle both the Unborn Victims of Violence Act and the ban on partial-birth abortion this month, fetal rights have found new prominence on the public stage.
Recent dramatic breakthroughs in fetal and reproductive medicine only add to the confusion. Once just grainy blobs on a TV monitor, new high-tech fetal ultrasound images allow prospective parents to see tiny fingers and toes, arms, legs and a beating heart as early as 12 weeks. But while these images can make parents’ hearts leap for joy, they also pack such an emotional punch that even the most hard-line abortion-rights supporters may find themselves questioning their beliefs. When 100,000 times a year, doctors are joining sperm and egg in a petri dish, and sometimes freezing the leftovers to be implanted in a woman at a later date, the question “When does life begin?” takes on new resonance. When specialists can do lifesaving surgery in utero, fetuses that once might have been terminated now have a shot at a normal life.

THE MEANING OF LIFE
      Along with forcing Americans into more-nuanced stances, the new science is also fanning longstanding, divisive political feuds—over the legality and morality of ending a pregnancy, about the rights of a woman versus the rights of an embryo or fetus, and, ultimately, over the meaning of human life. Abortion foes hope to take advantage of the new technology and sympathetic political environment to win fresh support. For their part, abortion-rights activists worry that the new focus on the fetus is part of a broad strategy to undermine the very bedrock of Roe v. Wade.
      Activists on both sides are struggling to tread this new territory without losing their political footing. For decades, abortion opponents have offered moral and ethical arguments about protecting the fetus. Now they’re building a legal case, defining the fetus—and even the embryo—as an individual entitled to basic human rights. With the recent murders of Laci Peterson and her unborn son, Conner, nearly 9 months old, abortion-rights supporters are finding it increasingly difficult to claim credibly that a fetus just a few weeks, or even days, from delivery is not entitled to at least some protections under the law—but they vigorously argue against such laws anyway, fearing that giving a fetus rights will lead to the collapse of abortion protections. “If they are able to make fetuses people in law with the same standing as women and men, then Roe will be moot,” says Planned Parenthood president Gloria Feldt. On the other side of the debate, the anti-abortion camp strives to make laws protecting a woman’s right to choose seem absurd. “It’s not OK for the husband to kill his wife’s child, but it’s OK for the mother [to have an abortion]?” asks Ken Connor, president of the anti-abortion Family Research Council. But by equating any use of embryonic research with murder, and even objecting to the storage of undeveloped embryos for future use by potential parents, anti-abortion activists risk alienating many Americans. (According to the NEWSWEEK Poll, 49 percent of Americans think it’s OK for an IVF clinic to destroy human embryos with the parents’ approval.)

        Without any nationwide consensus, individual states have begun settling on their own answers. Last month Gov. Jeb Bush asked a Florida court to appoint a guardian for the fetus of a 22-year-old developmentally disabled woman. A judge is scheduled to rule on the request this week. Within the past year, lawmakers in Georgia and Oklahoma introduced long-shot bills that would routinely require a woman seeking an abortion to obtain a “death warrant” for her fetus. Courts would then appoint a guardian for the fetus and hold a hearing to determine whether a woman could end her pregnancy. Neither bill is considered likely to pass, but they are visible signs of how abortion foes are using fetal rights as new ammunition in the abortion war.

‘I HOPE THE BASTARD DIES’
      In Wisconsin, Tracy Marciniak’s case ultimately prompted the governor at the time, Tommy Thompson, to sign a law that counts fetuses as murder victims. Now 28 states have fetal-homicide laws on the books. In many states, the laws take effect only after a fetus is able to live outside the uterus, around 24 weeks. But 14 states cover a developing child from the moment an embryo is implanted in a woman’s uterus—well within the legal time frame for an abortion. When Corinne Wilcott found out that 19-year-old Sheena Carson was having an affair with Wilcott’s boyfriend and was 17 weeks pregnant, she attacked Carson, kicking her stomach repeatedly. “I hope the bastard dies,” Wilcott said, according to prosecutors. Now Wilcott, one of the first convicted of murder in March under Pennsylvania’s Crimes Against the Unborn Child Act, faces up to 40 years in prison.
        As a state senator, Rep. Melissa Hart helped pass the Pennsylvania law. Now she’s plugging the issue again in the U.S. House. The House passed the Unborn Victims of Violence Act in 1999 and again in 2001. The law would apply only to federal crimes—like bank robberies or domestic violence on military bases—when “a child in utero” is harmed or killed “at any stage of development.” Penalties depend on the exact crime, but harming the fetus alone is counted as a separate crime that earns offenders as much jail time as harming the mother. The bill is expected to pass the Senate this time; it didn’t hurt that Laci’s family wrote and asked lawmakers to call it “Laci and Conner’s Law” (even though it would not apply in their specific case). Seated behind a large desk, Hart insisted the law does not conflict with abortion because it applies only in cases where the mother wants the baby. “I don’t think there’s anybody who can argue the other side of this,” she said, gesturing with a crucifix-shaped letter opener.

      Across town, NARAL Pro-Choice America president Kate Michelman sighs deeply when she learns the bill has been renamed after Laci and Conner. She accuses lawmakers of exploiting the tragic case. “It’s so crass, so offensive,” she says. “It’s part of a larger strategy to establish the embryo with separate distinct rights equal to if not greater than the woman.” But Michelman does not want to seem callous. She calls back later to stress how terminating a wanted pregnancy is “an especially heinous crime that deserves enhanced penalties.” Yet because Michelman and her group refuse to grant the fetus any rights at any stage of development, she awkwardly argues in favor of alternative laws that would add harsh penalties for attacking pregnant women—up to 20 years for harming a pregnancy and a life sentence for ending it. “That’s not inconsistent,” she argues. “It centers on the violence against the pregnant woman.”

EXTRA OVERSIGHT
      Michelman and her allies suspect that the conservatives’ movement to protect fetuses is all part of a plan by the Bush administration to lay extensive legal groundwork to upend Roe. George W. Bush himself has spoken out in favor of the Unborn Victims Act and against destruction of embryos for medical research. In the past year, his administration has expanded the State Children’s Health Insurance Program to cover children from “conception to birth to age 19,” and added embryos to the list of vulnerable “human research subjects”—like children and prisoners—deserving extra oversight.

      The courts are the other major weapon in the fetal-rights arsenal. If they can’t overturn Roe directly, abortion opponents would like nothing more than to have sympathetic judges in as many courtrooms as possible. Many of Bush’s candidates for the federal bench have strong anti-abortion records. One pending nominee to a federal district court, J. Leon Holmes, is even a former president of Arkansas Right to Life. Democrats in the Senate are already filibustering two of Bush’s picks, in part because of their attitudes on abortion. The fight is certain to grow even uglier if, as expected, there’s at least one vacancy on the high court before Bush leaves office.
        In the meantime, Bush has filled administration posts with officials who share his outlook. Under the careful direction of White House adviser Karl Rove, aides hold regular conference calls with evangelical Christians and Catholics to make sure they’re happy. “The strategy is simply to create a principle that is at the heart of all this legislation that the unborn should be and are protected by law,” says Deal Hudson, a Catholic adviser to the president. “There’s a great deal of coordination within the administration on these issues.”
        Abortion opponents are setting their sights on ever-tinier targets, including the thousands of frozen embryos in storage at in vitro fertilization clinics across the country. During an IVF cycle, women take powerful drugs that stimulate their ovaries to produce many eggs at once. Because doctors haven’t perfected techniques for freezing extra eggs alone, they fertilize them all, implant a few into a woman’s uterus, then freeze the remaining embryos—a situation that troubles many abortion opponents. “As we see it, there’s already a human being in a human embryo,” says Douglas Johnson, legislative director of National Right to Life. Until recently no one knew exactly how many frozen embryos were in storage. But last month a new study calculated that there are nearly 400,000 embryos in clinic freezers, and nearly all of them—88 percent—are set aside for future family building by patients. Only about 3 percent have been earmarked for medical research and just 2 percent for donation to other couples.
        Even families who’ve reserved their embryos for future use are often conflicted about what to do with them. Sue DiSilvestro and her husband, John, have 5-year-old triplets from IVF—and three embryos in cryostorage. Before their IVF cycle, the couple had planned to donate any extras to research. But now, the first photo in their baby book is a grainy cluster of six- or eight-celled embryos.

WHAT TO DO NEXT
      With triplets and a limited income—she’s a nurse and he’s a firefighter—the DiSilvestros don’t think they want more kids, and they’re agonizing, even disagreeing, over what to do next. Sue is still somewhat open to giving them to research, but John is strongly against it. He would prefer to donate them to another infertile couple, giving the cells a chance at life, and two more people the family they dreamed of. “Everything changes once you have kids,” he says. “I now realize those embryos are my children. It’s a different ball game.”
        The decision over what to do can be so wrenching that couples often pay hundreds of dollars a year in storage fees to avoid making it. “It’s like a security blanket,” says Dr. David Hoffman, who coauthored last month’s embryo study. Patients who decide they want more children usually have several embryos implanted at once: live births occur only about 20 percent of the time when frozen embryos are transferred to the womb.
        Even Sen. Arlen Specter, a champion of embryonic stem-cell research, has had second thoughts about what to do with the frozen embryos. He debated the issue during a train ride last year with Rep. Chris Smith, a strong abortion opponent. Smith, who disputed the notion that the embryos were “leftovers” that would be destroyed anyway, mentioned that they could be adopted instead. This conversation represented a turning point in Specter’s thinking. “If these embryos could be adopted, I wouldn’t use them for research,” Specter told Smith. Last year he added $1 million to the federal budget for a pilot program to promote embryo-adoption efforts.
        The whole question of embryo “adoption” is controversial. The American Society for Reproductive Medicine believes embryos can be donated like kidneys, but not adopted like living children. But one federal grant recipient, a project called Snowflakes, is part of a Christian adoption agency that goes so far as to conduct home studies of prospective parents. In the past five years, Snow-flakes has had 27 babies born; an additional 18 are due by the end of the year.
        But dealing with embryos is always a delicate business. The federal government refuses to fund any research on human embryos—a situation that’s already slowed fertility research to a trickle. And now researchers worry that the new scrutiny could lead to further crackdowns on the work they’re already doing, perhaps setting limits on the number of embryos they can create or banning procedures that might inadvertently harm the growing cells. Dr. Jamie Grifo, a reproductive endocrinologist at New York University who has helped pioneer new infertility techniques such as pre-implantation genetic diagnosis, says the worry over working with embryos has already had a chilling effect. “There are no projects that we’re doing right now because we’re afraid of the politics,” he says angrily. “We’re making people parents who wouldn’t be otherwise. What’s the problem here?”
        So far, the fight over fetal and embryonic rights is in a delicate stalemate. Each side risks overreaching. One government department that handles family-planning funds is already marshaling evidence about whether various birth-control methods—like the pill or IUDs—work by interfering with implantation of an embryo in the uterus. Trying to crack down on birth control may be a step too far. But arguing against “Laci and Conner’s Law”—which Congress will likely pass—could also be a losing battle. For now, with the majority of Americans behind it, Roe remains the law of the land. The question is whether the law can protect fetuses without eroding the rights their mothers fought so hard to win.