Opinion

Embryonic rights fight erodes rights of women

By Robin Baranyai, Special to Postmedia Network

Sofia Vergara arrives for the 68th Emmy Awards in Los Angeles. Vergara is facing a bizarre lawsuit brought on behalf of two frozen embryos she created with an ex-boyfriend, the subject of a year-long legal battle. The embryos are listed as plaintiffs "Emma" and "Isabella" in papers filed with a Louisiana court, the New York Post reported. Louisiana is a pro-life state where embryos are given rights as people. (ROBYN BECK/AFP/Getty Images)

Sofia Vergara arrives for the 68th Emmy Awards in Los Angeles. Vergara is facing a bizarre lawsuit brought on behalf of two frozen embryos she created with an ex-boyfriend, the subject of a year-long legal battle. The embryos are listed as plaintiffs "Emma" and "Isabella" in papers filed with a Louisiana court, the New York Post reported. Louisiana is a pro-life state where embryos are given rights as people. (ROBYN BECK/AFP/Getty Images)

Celebrity headlines typically qualify more as entertainment than news. But once in a while, the sensational crosses over into the existential -- such as when it was reported Modern Family actress Sofia Vergara is effectively being sued by her own frozen embryos.

Fertilized, unimplanted pre-embryos "Emma" and "Isabella" are named as plaintiffs in a right-to-life suit along with their trustee, according to court documents cited by the New York Post.

Vergara separated in 2014 from her ex-fiancé Nick Loeb. The couple had undergone in-vitro fertilization (IVF) at a California clinic, and established a trust for any future children. A contract stipulates neither may do anything with the frozen embryos without the other's consent.

After an unsuccessful and very public bid for "custody" of the embryos, Loeb dropped the suit, whereupon the third-party right-to-life action was launched in Louisiana -- a state tilting sharply pro-life, where a fertilized egg has legal standing as a juridical person.

Others may speculate as to the motives for the lawsuit, which claims the embryos should be transferred to Mr. Loeb so they can receive their inheritance. A more vexing concern is the application of "right to life," and how fetal and even pre-embryonic rights are being expanded at the expense of women's autonomy.

The concept of fetal rights is often presented in the sympathetic context of protecting women. Of course, harm to a fetus resulting from domestic violence or drunk driving causes tremendous suffering. Nevertheless, the American Civil Liberties Union argues, it is dangerous to consider rights of a fetus separate from, or in opposition to, rights of the mother.

Asserting the personhood of a fertilized egg, embryo or fetus puts these entities on a collision course with women's constitutional rights to privacy and protection. As women's advocate Lynn Paltrow notes, "If the unborn have legal personhood rights, pregnant women won't."

It's a short road from independent fetal rights to policing pregnancy outright. Women could be exposed to prosecution for virtually any risk undertaken while pregnant -- smoking; falling down while skating; choosing a home birth. The ACLU cites Grodin v. Grodin, a 1980 case of "prenatal negligence" in Michigan, in which a court determined a child could sue his mother for taking tetracycline during pregnancy, allegedly resulting in discoloration of the child's teeth.

The expansion of fetal rights represents an assault on reproductive choice. A recent example is the Ohio state legislature's so-called "Heartbeat Bill," which would have ended abortion access when a fetal heartbeat could be detected -- as early as two weeks after a missed period -- had it not been vetoed this week by Governor John Kasich.

Asserting the right to life of each fertilized egg would cause the industry to unravel. In a typical procedure, multiple eggs are fertilized and implanted to increase the chance of success. This ups odds of multiple pregnancies. Selective reduction is a common outcome, for the health of mother and fetuses.

The prospect of fertilized embryos sitting indefinitely in cold storage is also inconsistent with "right to life." Yet IVF is not always undertaken for immediate results; sometimes it's used to preserve future options. Couples may have embryos frozen before chemotherapy - just in case. A cancer survivor may or may not be up to demands of childrearing; certainly no one should make that decision for them. And what of the embryos of a parent who does not survive?

Asserting embryonic rights does not serve the best interests of the child --or potential child. It just erodes the rights of women.

write.robin@baranyai.ca