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The question of whether, and to what degree, human embryos have a moral status requiring protection is a debate that still remains unsettled.
It is no exaggeration to say that debates over the moral status of embryos have ﬁlled the pages of bioethics journals in recent years. No agreement has been reached as to what would be the best approach to solve it. It is not meant here to describe in details theories that have dealt with the topic; rather, it is essential to expose the basis of the disagreement and to look at different perspectives in order to further the debate.
Common morality theory does not provide a basis for resolving disagreements about the moral status of entities such as embryos and nonhuman animals, which precludes it from making much of a contribution to many disputes in bioethics. It is no exaggeration to say that debates over the moral status of embryos or preembryos have ﬁlled the pages of bioethics journals in recent years. Disagreement over the status of the embryo was the principal reason the President’s Council on Bioethics in the USA could not achieve consensus with respect to its recommendations on cloning for purposes of biomedical research. Similarly, the status of nonhuman animals has received considerable attention, with a range of views about their status being advanced.
The moral status of the embryo is a debate that still remains controversial. No agreement has been reached as to what would be the best approach to determine it. It is not meant here to describe in details theories that have dealt with the topic; rather, it is essential to expose the basis of the disagreement and to look at different authors who have tried to present a common moral ground to further the debate.
From a biological perspective, an embryo is a living being in the early stages of development, from fertilization until the organism acquires the morphological characteristics of the species.
Fertilization is the ﬁrst step in the life of every individual. It is not a moment but an ongoing process that lasts 25–30 h. It starts by the penetration of the male gamete or sperm into the female gamete or oocyte, after crossing two barriers: the corona radiata (composed of follicular cells) and the zona pellucida (a glycoprotein shell surrounding the oocyte). Sperm must undergo a change called capacitation before they are ready to penetrate the oocyte (George and Tollefsen 2008). The next key stages of fertilization are recognition and attachment of sperm to the zona pellucida, acrosome reaction, fusion of the plasma membranes of gametes, activation of the oocyte, the resumption of oocyte meiosis, decondensation of the spermatic nucleus and the formation of pronuclei, and pronuclei development. When both pronuclei join, the 23 chromosomes from the male and the 23 chromosomes from the female unite (George and Tollefsen 2008), in a process called syngamy, resulting to the formation of a new cell called zygote, which contains a single diploid nucleus and a unique genome, different from that of the cells of its mother or father. Embryonic development is considered to begin at this point. This process occurs in the ampulla of the uterine tube and triggers a change in the oocyte membrane potential, with the consequent change in its permeability, preventing the entry of other sperm.
The newly formed zygote must make its journey to the uterus. Along the way the zygote begins its ﬁrst processes of biological development. It undergoes a number of cell divisions referred as cleavages. At 4 or 5 days (D4–D5), the morulastage embryo (containing about sixteen cells) enters the uterus (George and Tollefsen 2008). Then the ﬁrst embryo cavity is formed (blastocele) inside the morula (Encha-Razavi and Escudier 2010) and separates the embryo in two parts: the inner cell mass, which gives rise to tissues of the embryo proper, and the outer cell mass that forms the trophoblast, which later contributes to the placenta. The whole embryo at this point is now referred as a blastocyst. This differentiation signals the loss of totipotency of the ﬁrst cells of the zygote (blastomeres), which cannot be replaced, and marks the entry of stem cells in a pluripotent stage. Later, with the differentiation of primitive germ layers, embryonic stem cells enter a period of multipotency, in which they only can replace cells of their original source line (Encha-Razavi and Escudier 2010).
The ﬁrst blastomeres can only ensure the replication of their DNA. The protein synthesis is done through maternal transcripts banked during oogenesis. The transcriptional activity of the new genome starts from the stage of four blastomeres, between D2 and D3. The transition from maternal to embryonic control of the genomic activity is gradual, after the degradation of maternal transcripts (Encha-Razavi and Escudier 2010).
During the era of free life inside the female genital tract (the preimplantation period), mother-embryo exchanges occur by means of active transport through the trophoblast’s cells. The persistence of the zona pellucida during tubal journey avoids an ectopic implantation of the embryo (Encha-Razavi and Escudier 2010).
The implantation is a limiting process in reproduction, which depends on complex and precise interactions between preimplantation embryo and maternal endometrium (the uterine lining), through a complex and mutual mechanism of immune tolerance. This is a crucial time for the survival of the embryo, which requires a perfect synchronization between the embryo in the blastocyst stage and the maternal endometrium.
Six days after fertilization, the blastocyst attaches to the endometrium and the process of implantation begins. After the successive stages of orientation, afﬁxing, adhesion, and invasion (Encha-Razavi and Escudier 2010), on the 12th day, the embryo is completely embedded in the endometrium. By the beginning of this process, the embryo has begun taking nourishment from surrounding maternal tissues (George and Tollefsen 2008).
In the 2nd week, the cells of the trophoblast send speciﬁc biomolecular signals to the embryoblast, promoting its further development: the inner cell mass divides into a two-layered embryonic disk. In the 3rd week, the embryo will develop a third layer through the process of gastrulation and will begin to manifest early neural structures through neurulation (George and Tollefsen 2008). An important even in this week is the development of the primitive streak, leading to the embryonal loss of pluripotenciality and terminating the possibility of twinning (Silvestre 2015).
By the end of the 3rd week, the embryo is ready to enter the next 4-week phase of intense structural development, known as the morphogenesis period (George and Tollefsen 2008).
After these 1st weeks of development, the embryo gives place to the fetus. The fetal period is characterized by the growth and maturation of the fetal organs, a process which continues during the last months of pregnancy (and, for the nervous system, even for a relatively long postnatal period) (Encha-Razavi and Escudier 2010).
Biological science is knowledgeable about the beginning of human life, but cannot decide on the beginning of the human person, which is a philosophical question. It remains to qualify the ontological quality of this new life.
Two leading theories of moral status appear to lead to diametrically opposed positions on this issue in the case of the human embryo. If the threshold condition for full moral status is the range property of being a person, then assuming that the embryo is neither rational nor self-aware, it would seem that the embryo would fall well below the threshold of moral respect. On the other hand, if the threshold condition for full moral status is being human, then assuming that the embryo is a human being, it would seem to be entitled to the same basic rights as any other human being. Therefore, common morality theory does not provide a basis for resolving disagreements about the moral status of entities such as embryos. However, since the moral status of the human embryo is central to contemporary debates on the ethics of cloning, embryo research, stem cell research, genetic engineering, assisted reproduction, preimplantation diagnosis, genetic screening, postcoital contraception, and the production of chimeras and “nonorganismal entities.” We as a society are asked to take a further step down that “strange road of respect” (Callahan 1995, p. 39).
For Warren (1997), a judgment about an entity’s moral status involves seven different principles, which include both intrinsic and relational properties of the entity in question. Accordingly, human embryos have a weak moral status and deserve a weak but genuine moral respect; somebody’s entitlement to even a weak moral status requires that there be sincere moral deliberation about its treatment. The very presence of moral status demands reﬂection on questions like: What level of respectful treatment do I owe this entity? What would a morally admirable person do to this entity, and what should I in good conscience refuse to do to it? In contrast, all such questions are simply beside the point for entities without moral status (Meyer and Nelson 2001).
For some authors like Callahan (1995), it is difﬁcult to escape the conclusion that the use of the language of respect in this context is merely cosmetic. The puzzle for Callahan is how we can, without a tragic disingenuousness, accede to the killing of something for which [we] claim to have a profound (or some, or weak) respect (Meyer and Nelson 2001; Gibson 2007). In order to reach a possible compromise, we must adopt a “cosmetic” position: a lack of moral status does not necessarily imply a lack of moral value; therefore, since morality includes also the “morality of respect,” it must be admitted, in order to ﬁnd a common compromise, that respect, like moral status, admits degrees. The only valid starting point of reasoning should be based on moral pluralism and moral disagreement.
Even with the impracticality of reaching a consensus and the difﬁculty of reaching a compromise in terms of both moral status and moral respect, it is true that moral agents should respect one another’s attributions of moral status, even if the fundaments of another’s attributions of moral status cannot be recognized. So decisions regarding the treatment of the human embryo might be based not or not only on the individual position on the moral status of the embryo as such, but at least in part on respect for the attributions of moral status by other moral agents (Gibson 2007). Given our uncertainties about the exact moral status of embryos, it is appropriate to try to work out ethically acceptable uses of them with extreme caution and even fear and trembling, rather than to call for their blanket use on the basis of an inadequate concept of their moral standing. Ethically acceptable uses of the embryo have to be worked out in a way that acknowledges that the human embryo is both something that may well have considerable moral status and something that may well not have considerable moral status. Just because of this, permitting but restricting the use of the human embryo in research can be justiﬁed not so much as a compromise between competing positions nor as a balancing of competing interests, but as an acknowledgement of and respect for the seriousness of what is at stake in either allowing or preventing its use (Gibson 2007).
The Main Moral Positions On The Respect Of The Embryo
Different assumptions about the moral status of an embryo have led to different conclusions about the appropriate respect of the embryo. These different arguments have been combined in various ways, and therefore, distinct moral positions on the respect of the embryo are deﬁned. Four main moral positions have been identiﬁed by the Council of Europe (2003). However, and since the gradualistic positions can be combined, we opt to consider only the three main positions: full moral respect, gradualistic respect (without any division), and no moral respect.
Full Moral Respect
—“fertilised egg, or an embryo, has inviolable value (as do all human beings), and a right to life.. .” (Council of Europe 2003, p. 5)
Individuality And Identity
Three types of arguments could be used in terms of individuality and identity: genomic individuality, numerical identity, and identity of the self (Mauron 2004).
Arguments Based On Genomic Individuality
The primary causal factor that determines whether an embryo will become a human being or a chimp or a pig is embryonic DNA. Human embryos possess the epigenetic primordia for self-directed growth into adulthood, with their determinateness and identity fully intact (George and Gómez-Lobo 2005). The combining of the chromosomes of the spermatozoon and of the oocyte generates what every authority in human embryology identiﬁes as a new and distinct organism. Unless deprived of a suitable environment or prevented by accident or disease, the embryo is actively developing itself to full maturity. The direction of its growth is not extrinsically determined, but is in accord with the genetic information within it. The human embryo is, then, a whole (though immature) and distinct human organism – a human being (George and Gómez-Lobo 2005). The radical moral difference between entities that have intrinsic value and basic rights and entities that lack such value and rights must be based on the natures of those entities, not their accidental characteristics. Basis for that moral difference (a difference in the way they should be treated) must be the natures of those entities, not their accidental characteristics which involve merely quantitative differences, or differences in degree.
But it is true of the human embryo now that he or she is a distinct individual with a rational nature, even though it will take him or her several years fully to actualize his or her basic, natural capacities, so they are immediately exercisable.
Arguments Based On Numerical Identity
At the early stages of human embryonic development, before specialization by the cells has progressed very far, the cells or groups of cells can become whole organisms if they are divided and have an appropriate environment after the division. But that fact does not in the least indicate that prior to such an extrinsic division the embryo is other than a unitary, self-integrating, actively developing human organism. It certainly does not show that the embryo is a mere clump of cells. In the ﬁrst 2 weeks, the cells of the developing embryonic human being already manifest a degree of specialization or differentiation. From the very beginning, even at the two-cell stage, the cells differ in the cytoplasm received from the original ovum. Moreover, the relative position of a cell from the very beginning (i.e., from the ﬁrst cleavage) has an impact on its functioning. Monozygotic twinning usually occurs at the blastocyst stage, in which there clearly is a differentiation of the inner cell mass and the trophoblast that surrounds it (from which the placenta develops). The orientation and timing of the cleavages are species speciﬁc and are therefore genetically determined, that is, determined from within.
If the individual cells within the embryo before twinning were each independent of the others, there would be no reason why each would not regularly develop on its own. Instead, these allegedly independent, noncommunicating cells regularly function together to develop into a single, more mature member of the human species. This fact shows that interaction is taking place between the cells from the very beginning (even within the zona pellucida, before implantation), restraining them from individually developing as whole organisms and directing each of them to function as a relevant part of a single, whole organism continuous with the zygote. Thus, prior to an extrinsic division of the cells of the embryo, these cells together do constitute a single organism. So the fact of twinning does not show that the embryo is a mere incidental mass of cells. Rather, the evidence clearly indicates that the human embryo, from the zygote stage forward, is a unitary, human organism (George and Gómez-Lobo 2005).
Arguments Based On Identity Of The Self
The immediately exercisable capacity to reason and make free choices is only the development of the underlying basic, natural capacity for reasoning and free choice, and there are various degrees of that development along a continuum. But one either is or is not a distinct subject with a rational nature (the traditional deﬁnition of “person”). So Singer is correct to say that the right to life must be based on what is true of the entity now, not just what is true of its future (George and GómezLobo 2005). If one denied that human beings are intrinsically valuable in virtue of what they are, but required an additional attribute, the additional attribute would have to be a capacity of some sort and, obviously, a capacity for certain mental functions. Of course, human beings in the embryonic, fetal, and early infant stages lack immediately exercisable capacities for mental functions characteristically carried out (though intermittently) by most human beings at later stages of maturity. Still, they possess in radical (= root) form these very capacities. Precisely by virtue of the kind of entity they are, they are from the beginning actively developing themselves to the stages at which these capacities will (if all goes well) be immediately exercisable.
The proximate, or immediately exercisable, capacity for mental functions is only the development of an underlying potentiality that the human being possesses simply by virtue of the kind of entity it is (George and Gómez-Lobo 2005). It cannot be denied that an embryo is a potential human being, i.e., an instance of human life in development. Thus it is necessary that this potential person be considered in a biological reality (the embryo is human according to a speciﬁc genome and to a succession of organizational stages) and on an anthropological level (the embryo is part of a parental and emotional project, as well as part of a legal regulation). Moreover, it has been argued that because an embryo is an instance of human life, even though at an early stage, its status has to be understood in a kind of ethics proper to the human species. Rather than speaking of it as “a potential human being,” it therefore makes more sense to speak of it as “a human being with potential,” “a human being in an early stage of development,” or “a potential baby or adult.” Nevertheless, two different positions could be identiﬁed: embryos are potential persons/human subjects and therefore to be treated as if they were such or embryos are persons/human subjects and therefore to be treated as such.
Unless deprived of a suitable environment or prevented by accident or disease, the embryo is actively developing itself to full maturity. Some authors have claimed that due to the amount of unsuccessful pregnancies this argument should not be used. However, it is worth noting ﬁrst, as the standard embryology texts point out, that many unsuccessful pregnancies are really due to incomplete fertilizations. To be a complete human organism (a human being), the entity must have the epigenetic primordia for a functioning brain and nervous system, though a chromosomal defect might only prevent development to maximum functioning (in which case it would be a human being, though handicapped). If fertilization is not complete, then what is developing is not an organism with the active capacity to develop itself to the mature (even if handicapped) state of a human.
Second, the argument here rests upon a variant of the naturalistic fallacy. It supposes that what happens in “nature” – in other words, with predictable frequency without the intervention of human agency – must be morally acceptable when deliberately caused; however nature does not possess a moral status; therefore, embryonic death in early miscarriages that happens with predictable frequency without the intervention of human agency cannot be used as an argument (George and Gómez-Lobo 2005).
(“Moral value progression with the development signiﬁcant, but not absolute, value” or “entitlement to rights and protection increases progressively throughout development, but full rights are only achieved at birth”). (Council of Europe 2003, p. 6).
Individuality And Identity
Arguments Based On Genomic Individuality
Ronald Green (2001) has argued that the totipotency and inner-directedness criteria cannot be restricted to embryos and fetuses. As Green argues, the question of which entities possess the genetic primordia for development into complete human organisms is closely tied to questions about our current technological abilities. The embryos cannot develop into a complete adult human organism without a great deal of help – help that we can currently provide. But all the cells in our body have some potential for such development, though we currently lack the technology to assist them in this regard. With further technological development, the list of cells with the relevant genetic primordia might be expanded to the point where our interests would have to be weighed against the developmental interests of our various bodily cells.
Arguments Based On Numerical Identity
Phenomenon of monozygotic twinning shows that the embryo in the ﬁrst several days of its gestation is not a human individual. The suggestion is that as long as twinning can occur, what exists is not yet a unitary human being but only a mass of cells – each cell is totipotent and allegedly independent of the other. Therefore, for some authors, it is still unclear in the initial 14-day period whether an embryo will develop into one or more human beings. The possibility for “twinning” is still present, suggesting that the earliest stage embryo is either not yet an individual or is a being that is not conﬁned to becoming only one individual. There are continuing philosophical debates about how to understand what happens in twinning: for example, whether one individual embryo “clones” itself to produce a second or whether an organism that resembles (but is not yet) an individual embryo divides into two truly individual beings. Perhaps the best-known twinning argument comes from Helga Kuhse and Peter Singer. Kuhse and Singer argue that the occurrence of twinning leaves us with no plausible explanation regarding the fate of the human individual that produces a new twin pair of human embryos.
The zygote had the potential to produce either one individual or four individuals; a man and a woman have intercourse, fertilization takes place, and a genetically new zygote is formed with a speciﬁc genetic identity – a genetic blueprint – that will be repeated in every cell once the ﬁrst cell begins to split, ﬁrst into two, then into four cells, and so on. On day 8, however, the group of cells divides into two separate identical cell groups. These two separate cell groups continue to develop and, some 9 months later, identical twins are born; the twinning process is quite symmetrical and both twins have the same genetic blueprint. But to suggest that both are the same, of course, conﬂicts with numerical continuity: there was one zygote and now there are two babies. Those who want to object to embryo experimentation because it destroys a particular or identiﬁable human life would be on much safer ground were they to argue that a particular human life begins not at fertilization but at around day 14 after fertilization. By that time, totipotency has been lost, and the development of the primitive streak precludes the embryo from becoming two or more different individuals through twinning; therefore, only after this period we may talk about genomic identity and numerical individuality.
In addition to these humans who are one of identical twins or higher multiples, there are others the exact percentage is unknown who come into existence as a result of the reverse process, that is, the fusing of two or more embryos into a single embryo. Then too we should say that the human individual came into existence not at fertilization but only after the fusing occurred. Otherwise we would have to specify which one of the two or more embryos the human being was and why that one survived fusing and the other, or others, did not. The parallel here to the suggestion that in the case of an embryo splitting there were always two individuals would have to be the suggestion that in the case of embryos fusing there was always only one individual, located in two places. That is implausible, and it becomes untenable if the fusing is a result of a cause external to the embryos. The difﬁculty of identifying the individual or individuals at this early stage becomes even more acute if we consider splitting an embryo, then fusing the split parts with parts of other embryos, then splitting them again, and fusing them again, and so on (Sagan and Singer 2014)
Arguments Based On Identity Of The Self
Nor is an embryo a person or an early stage of a person, in the typical understandings, both metaphysical and moral, of the muddled term “person.” One oft-noted reason it is not is that an embryo prior to the formation of the “primitive streak” (which usually appears around 14 days of development) is not clearly even an individual, as it can still be divided into twins. Personhood is usually taken to imply individuality, as previous mentioned, and the acquisition of rational-based characteristics (Meyer and Nelson 2001). Therefore, it has been argued that the appearance of the primitive streak is the mark of “the beginning of the individual development of the embryo” or the beginning of the human individual.
Other authors have treated sentience – the capacity for pain and pleasure – as sufﬁcient to ground some level of moral standing. However, if sentience depends on signiﬁcant forebrain development, there can be no real question whether the early stage embryos possess sentience. Because the embryo lacks sentience, it lacks even the most primitive forms of preferences : and desires, so one may argue that it has no morally relevant interests and, therefore, lacks even weak moral standing. At this point the embryo ranks, morally, with other creatures who are conscious but not self-conscious (Singer 1993). Embryo’s capacity to feel pain, prior to the development of the neural system, is taken to be nonexistent (Gibson 2007).
During a standard developmental process, some part of the original biological material will result in tissues accompanying the embryo but not comprising the embryo proper. Thus, allegedly, it is wrongful to talk about the existence of the embryo before implantation – its personal individuality does not seem to be secured in a zygote. Potential properties are dynamic properties that encompass the sequential unfolding of events along an established causal pathway, either imposed from the outside, or sustained from within, or more commonly, through some combination of external and internal causal factors. The trigger that initiates this kind of potentiality typically is external, with the subsequent causal sequence under tight internal control (Brown 2007).
Meanwhile, recent developments and insights in cellular biology have cast further doubt on one of the core points of dissent: the argument from. Recent ﬁndings in reproductive and stem cell biology, including the discovery of the plasticity of early embryonic development, the advent of induced pluripotent stem cells, and the results on somatic cells reprogramming have been argued to rebut the possibility of the substance ontology argument which should, therefore, not be used to determine the moral status of the embryo.
If we regard conception as a process, which is not complete until implantation, why is it wrong to interrupt this process before its completion? The embryo up until this time is simply free ﬂoating. Brown explains that between fertilization and gastrulation, human development includes several substance changes and that therefore the early embryo is not the same entity as the infant (Brown 2007).
In the case of in vitro embryo, some authors also point that if an embryo is maintained outside a woman’s body and those who provided the gametes for it have not decided to permit its development in a womb, it is not effectively a stage in the early development of a person. Put differently, an extracorporeal embryo, whether used in research, discarded, or kept frozen, is simply not a precursor to any ongoing personal narrative. An embryo properly starts on that trajectory only when the gamete sources intentionally have it placed in a womb (Meyer and Nelson 2001).
Other point rests in the comparison that what happens in “nature”– in other words with predictable frequency without the intervention of human agency – must be morally acceptable when deliberately caused. Since a high percentage of embryos formed in natural pregnancies fail to implant or spontaneously abort without the intervention of human agency, we are warranted in concluding that the deliberate destruction of human beings in the embryonic stage is morally acceptable, since the continuity is not guaranteed and may be threatened. This argument has already been criticized by George and Gómez-Lobo (2005) in the previous section.
No Moral Respect
“Embryo is considered to have very little or no moral value. Hence, it is not considered to need any particular protection, nor would it be regarded as having a right to life.” (Council of Europe 2003, p. 5)
Individuality And Identity
Arguments Based On Genomic Individuality And Arguments Based On Numerical
Identity Even authors that defend that the embryo has no moral status, regarding these speciﬁc points, tend to use the same arguments previously presented in the gradualistic position. For Kuhse and Singer early embryonic cells are totipotent; that is, contrary to the “identity thesis,” an early human embryo is not one particular individual, but rather has the potential to become one or more different individuals. Up to the 8-cell stage, each single embryonic cell is a distinct entity in the sense that there is no fusion between the individual cells; rather, the embryo is a loose collection of distinct cells, held together by the zona pellucida, the outer membrane of the egg. Take a human embryo consisting of four cells, because each of four cells is totipotent, any three cells could be removed and the remaining cell would still have the potential to develop into a perfect fetus or baby. Now, it might be thought that this baby is the same baby that would have resulted had all four cells continued to develop jointly. But this poses a problem because we could have left any one of the other three cells in the zona pellucida, each with the potential to develop into a baby. Things are not made any easier by the recognition that the three “surplus” cells, each placed into an empty zona pellucida, would also have the potential to develop into babies. We now have four distinct human individuals with the potential to develop into four babies. This example shows that there are not only problems regarding individual identity but also closely related problems regarding the early embryo’s potential to produce one or more human individuals as discussed earlier.
It is also underlines the fact that cells routinely alter their gene expression proﬁles in response to different oxygen levels, different levels of nutrients, and so on; at least from implantation onwards, there is a constant acquisition of substances from the outside that modify the embryo’s internal parts, including its gene expression; the nutritional states in utero result in altered nuclear programs (expression proﬁles) that continue to impact predisposition to chronic diseases even late in life.
Arguments Based On Identity Of The Self
The embryo, especially the early embryo, is obviously not a being with the mental qualities which generally distinguish members of our species from members of other species. The early embryo has no brain, no nervous system. It is reasonable to assume that, so far as its mental life goes, it has no more awareness than a lettuce. Given that we all agree that the human embryo in its present form cannot reason, has never been able to reason, and will not be able to reason for a long time, or possibly will never be able to reason, is it more accurate to say that the human embryo “is a distinct individual with a rational nature” or to say that the human embryo “is a distinct individual with the potential to become a rational being?” In this perspective human embryos have the genetic coding that may, under favorable circumstances, lead it to develop into a being with a rational nature (Sagan and Singer 2014).
Some authors have identiﬁed the level of rationality typical of adults as the natural property that is crucial to the acquisition of strong moral standing. Deckers suggests that the natural inclination [of the embryo] toward growth into more developed humans justiﬁes its protected moral status, but it is difﬁcult to understand how this striving differs from the phototropism of a daisy bending toward the sun unless it is the contingent human qualities of self-consciousness and moral autonomy that invest the striving with moral value (Deckers 2005). Membership in the species Homo sapiens could be a marker for moral status merely because it is correlated with self-consciousness, rational autonomy, and moral personality. If so, then when the normal correlation fails to hold, as it does in the case of the embryo, moral status could not be read off from human status (Brown 2007).
According to Singer (1993), just being human does not give you a right to life. We have no obligation to allow every being with the potential to become a rational being to realize that potential. An obvious question to ask about this passage is whether the notion of “development” is sufﬁciently distinct from the notion of “potentiality” to bear the weight here placed upon it. The use of the term “human” proposed by Joseph Fletcher compiled a list of what he calls “indicators of humanhood” that includes the following: self-awareness, self-control, a sense of the future, a sense of the past, the capacity to relate to others, concern for others, communication, and curiosity. These two senses of “human being” overlap but do not coincide. The embryo, the later fetus, even the newborn infant, all are indisputably members of the species Homo sapiens, but none are self-aware or have a sense of the future (Singer 1993).
Continued existence cannot be in the interests of a being who never has had the concept of a continuing self – that is, never has been able to conceive of itself as existing over time. It can be argued that it is in personal interest that his/her parents met, because if they had never met, they could not have created the embryo from which he/she developed, and so he/she would not be alive. This does not mean that the creation of this embryo was in the interests of any potential being who was lurking around, waiting to be brought into existence. There was no such being, and had he/she not been brought into existence, there would not have been anyone who missed the life he/she has enjoyed living. Therefore, to have a right to life, one must have, or at least at one time have had, the concept of having a continued existence (Singer 1993).
“Embryo” is rarely deﬁned on legislations. Depending on the moral conceptions of what the embryo is, so is the legislator’s response. Whatever it is the degree of protection provided by law, the discussion goes from the consideration that human embryo does not need any particular legal protection to the argument that human embryo should have the same legal protection as a person.
Once considering that human embryos have the same moral status as human beings, protection of their dignity and integrity should not be distinguished. Some argue that traditionally, law tends to presume the personality since the conception on the grounds that when the legislator has doubts about what decision to take, he “must adopt the most favorable one to the subject in question, mainly when it is the most fragile,” adopting the principle in dubio pro vita.
On the contrary, if not considered as a person, embryos are worthy of no protection to a considerable protection.
Despite the different legislations regarding the protection of human embryo, law clearly draws a line at birth. In fact, birth appears to be the landmark to determine the full capacity of developing since fertilization to birth. The majority of legislations do not establish any personhood until the child is born alive.
The Universal Declaration of Human Rights (1948) also refers such landmark of “birth” stating that “All human beings are born free and equal in dignity and rights.” But when pretending to be more precise in the concepts, i.e., the distinction between “human being” and “person,” it appears that the sole consensus achieved is mostly general leaving to each state the legal scope of protection: the Convention on Human Rights and Biomedicine (1997) is a clear example of such lack of consensus when establishing the purpose and object of the Convention, Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention. Or even the Charter of Fundamental Rights of the European Union (2000), Everyone has the right to life (everyone instead of the human being).
Law also distinguishes between nasciturus (conceived but not born) and concepturus (not yet conceived) both having at a certain extent the protection of the law as subject of rights (can inherit, for instance), depending such concretion on the birth of an alive child. Although it is true that the embryo is not considered a person by law, it does not mean that it has no legally protected interests.
Those interests are expressed mainly in two legal situations. The ﬁrst one is abortion – the fetus has a legally recognized interest in remaining alive. In a great majority of legislations the attempt to terminate pregnancy is generally punished only being decriminalized under speciﬁc conditions. Even in legislations where abortion is permitted without speciﬁc grounds, there are still certain conditions to accomplish.
The second legal situation concerns the harm to the fetus before birth (although it is not characterized as an offense of “feticide”).
With the development of Assisted Reproductive Techniques and the possibility of embryo cryopreservation, research, and destruction, regulation has become even more complex. Is there any distinction between an embryo in utero and an embryo in vitro? Can the existing legislation be also applicable, on the same grounds, having in mind that an embryo in vitro has never been implanted, may never be implanted, and thus is technically easy to manipulate or destroy?
The same way as regarding embryos in utero consensus regarding the status of in vitro embryo has not been achieved yet, but at least there is, as a minimum standard, a global recognition that the embryo deserves protection, whatever its moral status. One example of such achievement is Article 18.1 of the Convention on Human Rights and Biomedicine (1997), where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo. In fact, despite all the different legislations, a common approach on embryo research has been achieved which demonstrates that human embryo is perceived by legislators as provided of value respect and, therefore, worthy of protection. This is one of the reasons for the existence of an ethical review of research projects in the EU involving human stem cells with speciﬁc ethical criteria.
Even with the impossibility of reaching consensus and the difﬁculty of compromised view about both moral status and moral respect, we have an obligation to continue to engage in the debate, not only in order to give those with whom we disagree a fair hearing but just as importantly in order to respect the other attributions of moral status, even if the fundaments of the another’s attributions of moral status cannot be recognized. Therefore, if a compromise cannot be reached regarding the moral status and moral respect in terms of the individual position as such, it is appropriate to try to work out ethically acceptable uses of the embryo in order to respect the attributions of moral status by other moral agents.
The statement of this lack of consensus in the determination of the moral status of the embryo is of high importance when one is led to deﬁne the legal status of the embryo or to regulate in the ﬁeld of embryo research. Therefore, since there is no way to obtain consensus on moral status of the embryos, one should search for other procedural criteria based on moral value and degree of respect. Therefore, while this moral status could be considered weak, the human embryo deserves moral respect and must not to be used in a way that is frivolous or unnecessary.
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