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OPINION: How Courts Have Mislabeled Human Embryos
Law360, New York (October 18, 2016, 12:55 PM EDT) -As colorfully noted by Shakespeare in Jaques’ speech to the Duke in "As You Like
It," a human being has many "ages" or developmental stages. But when does a
human being's development actually begin? The 1989 trial of a custody dispute
over six frozen human embryos, Davis v. Davis,[1] examined this very question. The
trial court heard the testimony of scientific experts, including renowned genetic
expert Dr. Jerome LeJeune, and decided that each four- to eight-cell embryo was a
human being.[2]
The decision was appealed, and by the time it reached the Tennessee Supreme
Rita Lowery Gitchell
Court in 1992, the claim that the embryos were human beings was abandoned.[3]
Nonetheless, at the urging of 19 amicus including the American Fertility Society
(AFS), the court in dicta reversed the trial court and claimed that “the first cellular differentiation relates
to the physiological interaction with the mother, rather than the establishment of the embryo itself. It is
for this reason that it is appropriate to refer to the developing entity as a preembryo, rather than an
embryo.” [4] Relying on the very testimony the trial court rejected as biased and self-serving, the court
reversed the trial court decision, observing, again in dicta, that human embryos were not human beings
or property, but occupied an intermediate status in between.[5]
Legal precedent following Davis has not challenged the Tennessee Supreme Court’s 1990's
understanding of human development. And legal precedent following Davis has not challenged in vitro
fertilization clinic forms describing embryos as preembryos, cells or tissue, and consequently disposable
under contract law principles. This article revisits the issue of when human life begins, highlighting
recent scientific facts that differentiate a human embryonic organism from the organism's component
cells and tissues.
The article concludes that scientific facts reveal that human embryos are human beings with full
potential to complete life’s cycle, not potential human life. Human embryos, as human beings, are not
property and therefore contract law principles applicable to property should never govern human
embryo disposition decisions.
Contrary to the Tennessee Supreme Court's opinion in Davis and in subsequent precedent, it is scientific
fact that a new human organism comes into being at the moment of fertilization.[6] Human embryos are
not mere aggregates of human cells, as the Davis court and others have described them; they are fully
human organisms directing their own development from the moment of fertilization.[7]
An "organism" is defined by the medical dictionary provided by the United States National Library of
Medicine as "an individual constituted to carry on the activities of life by means of organs separate in
function but mutually dependent: a living being."[8] Human cells sustain their own cellular life through
complex behaviors, but do not have the higher level of organization characteristic of an organism.[9]
Cells in aggregates, while they "are alive and carry on the activities of cellular life, fail to exhibit
coordinated interactions directed towards any higher level organization."[10]
Even a one-cell human embryo or zygote, the youngest human being, is an organism, and not just a cell.
Dr. Maureen Condic[11] describes the zygote's organismic function as follows:
From the moment of sperm-egg fusion, a human zygote acts as a complete whole ... The zygote
acts immediately and decisively to initiate a program of development that will, if uninterrupted by
accident, disease or external intervention, proceed seamlessly through formation of the definitive
body, birth, childhood, adolescence, maturity and aging, ending with death. This coordinated
behavior is the very hallmark of an organism.[12]
Dr. Condic has further stated in court testimony:
While philosophy and religion assign a value to life, what is human life is a biological fact and not
an opinion ... The conclusion that a human zygote is a human being (i.e., a human organism) is not
a matter of religious belief, societal convention or emotional reaction. It is a matter of observable,
objective fact.[13]
The Tennessee Supreme Court's Davis decision rejected the scientific fact that a human embryo is an
organism, choosing instead to ground its decision on a 1990 ethics opinion of the American Fertility
Society describing an embryo at the eight-cell stage as an “aggregate” and a “loose packet of identical
cells”.[14] The Davis opinion also referenced law reviews that characterized the early embryo as
“undifferentiated cell masses” [15] and that “… the fertilized egg and early embryo consist of
undifferentiated cells that first form the placental layer before the embryonic axis (the embryo proper)
develops.”
Davis also referenced Clifford Grobstein for understanding the difference between an embryo and a
preembryo.[16] Grobstein described embryos up to the 16-cell stage as "aggregate[s]" which “as yet
shows no differences among the cells.” [17] At that time some embryonic research scientists thought
that early embryos' ability to grow into complete beings if separated experimentally meant that the cells
must be identical.[18]
But the "aggregate" understanding of early embryos has since been disproven. In 2008 a developmental
study of early human embryos by Dr. Renee Reijo Pera and others at Stanford University showed that
early embryonic cells do not behave identically.[19] Embryonic cells do not always divide in synchrony,
and as early as at the eight-cell stage each constituent cell enacts its own program of development.[20]
In 2005 differences among individual cells in the embryo were also reported by Nobel Prize winner Dr.
Robert G. Edwards, who helped create the first baby born from IVF.
In his article with Christopher Hansis,[21] the authors reported that even at the four-cell stage of
development embryonic cells may have differing roles in the embryo’s further development. Two cells
have inner cell mass that will become the embryos' body parts. Another cell will develop into the
trophectoderm that will become the placenta, the organ surrounding the developing prenatal body. A
fourth cell later develops into the germ line for the organism's reproduction, a process which continues
to develop after birth until puberty.[22]
The authors also reported that protein distributions are different among the early cells in a four-cell
embryo. For example, the fourth cell with mostly vegetal cytoplasm has small amounts of proteins leptin
and STAT3, whereas two cells have intermediate amounts and a third cell with mostly animal cytoplasm
has large amounts. In addition, mRNA expression of proteins such as B – HCG secretions are different in
trophectoderm cells as compared to cells that will reveal the inner cell mass.[23]
Given these differing behavioral characteristics, cells in an early embryo cannot accurately be described
as an "aggregate." This was acknowledged as early as 2002 in Nature:
Your world was shaped in the first 24 hours after conception. Where your head and feet would
sprout, and which side would form your back and which your belly, were being defined in the
minutes and hours after sperm and egg united.
Just five years ago, this statement would have been heresy. Mammalian embryos were thought to
spend their first few days as a featureless orb of cells. Only later, at about the time of implantation into
the wall of the uterus, were cells thought to acquire distinct "fates" determining their positions in the
future body. But by tagging specific points on mammalian eggs shortly after fertilization, researchers
have now shown that they come to lie at predictable points in the embryo. Rather than being a naive
sphere, it seems that a newly fertilized egg has a defined top–bottom axis that sets up the equivalent
axis in the future embryo: What is clear is that developmental biologists will no longer dismiss early
mammalian embryos as featureless bundles of cells.[24]
In sum, the rationale underlying the Tennessee Supreme Court Davis decision that a human embryo
(labeled by the court a "preembryo") is just an aggregate of cells until implanted in the mother's womb,
is itself scientifically outdated. Likewise, Davis — again relying on the AFS rationale that an embryo is not
an "individual" because in experimental manipulation each cell “if separated from the others, has the
potential to become a complete adult … [and therefore] at the eight-cell stage the developmental
singleness of one person has not been established” [25] — falsely created the impression that each cell
in the embryo is unspecified and equivalent. [26]
Yet the early embryo is not acting as a cell aggregate, but as a developing embryo even as a single-cell
zygote. For these reasons the term "preembryo" is today rarely used in scientific and bioethical
literature,[27] and the International Federation of Associations of Anatomists, which defines embryo
development phases for medical textbooks, recommends that it not be used.[28]
Distinctions drawn in the field of embryology are not just semantic. They instantiate our understanding
of the meaning of things. As the court in Jeter v.Mayo Clinic of Arizona observed, “[t]he word that is
used to describe the egg may significantly affect one's perception of when life begins.”[29] To describe a
human embryo simply as a "preembryo," a “prezygote,” a “fertilized egg,” “tissue,” or “combined
genetic material” is not only false scientifically, it serves in practice to strip the misdescribed human
organism of his or her human dignity. We do not label an adult human an "aggregation of tissue,” a
“product of conception,” or a "mass of differentiated cells.” These labels are equally flawed as applied to
human embryos, even at their earliest stages, since even then they constitute fully human organisms
with a full potential to complete their human life cycle.
The Tennessee Supreme Court relied on scientifically false premises, encapsulated in its "preembryo"
label, and for this reason failed to grasp that a human embryo, upon fertilization, is a created human
being. The flawed scientific premises led the court to flawed legal conclusions. For example, it said that,
absent a prior agreement, a party wishing to "avoid procreation” ordinarily should prevail in an embryo
custody dispute.[30] This conclusion does not follow from the scientific fact that procreation occurs at
fertilization, the point at which an embryo's parents are necessarily specified. And the court's flawed
logic has led to judicial acceptance of clinic forms mislabeling human embryos as cells, tissue or
property.[31]
Using contract principles to dispose of human embryos as mere property without interests or rights
commits a grave injustice against human beings, not only against embryos themselves, but also against
the parents who wish to protect them. Our bloody struggle to end slavery in the United States taught us
that it is never moral or just to degrade a human being to the status of property. Our nation's
ratification of the 13th Amendment in our federal constitution acknowledges this principle. The
unfinished struggle is to accept that our Declaration of Independence's promise of a right to "life" to all
in our nation must, in justice, apply as well to embryonic human life.
Given the observable fact that an embryo becomes a human being at fertilization, courts should review
and discard legal precedents based on earlier misconceptions of the nature of human embryos. This will
require courts to acknowledge the human being status of human embryos. The legal consequences of
this acknowledgement are several. Currently guardians of minor children who provide advance
directives for health care decisions may not enter into irrevocable contracts because the prevailing
consideration before the court is always the best interests of the minor.
Human embryos also have interests, such as an interest (shared with all living human beings) in
continued life. Courts should consider these interests, which should take precedence in disposition
disputes, just as the interests of children take precedence in custody disputes. As human beings, human
embryos should be treated with the respect and dignity accorded to other human beings, and not
relegated to a class of subhumans with no rights or recognizable interests.
—By Rita Lowery Gitchell, Thomas More Society
Rita Lowery Gitchell is special counsel to the Thomas More Society.
Disclosure: Gitchell has submitted briefs in embryo custody dispute cases with the aim of informing
courts of current science. [32]
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its
clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general
information purposes and is not intended to be and should not be taken as legal advice.
[1] Davis v. Davis, No. E-14496 Blount County Cir. Ct. (1989), not reported in S.W. 2d 1989, (1989 TN.)
1989 Tenn. App. Lexis 641, judg. vac. and cause remanded., rev., Davis v. Davis, 842 S.W.2d 588, 597
(TN. 1992) cert. den. Stowe v. Davis, 507 U.S. 911 (1993.)
[2] 1989 Tenn. App. LEXIS 641, at 23.
[3] 842 S.W.2d 588, 594 and n.16.
[4] 842 S.W.2d 588, 594 citing American Fertility Society June 1990 Report on Ethical Considerations of
the New Reproductive Technologies at 31S-32S.
[5] 842 S.W.2d 588, at 597.
[6] Maureen L. Condic, When Does Human Life Begin? The Scientific Evidence and Terminology
Revisited, 8 U. St. Thomas J.L. & Pub. Pol'y 44 (2013).
[7] Compare the HeLa cells extracted from Henrietta Lacks which have never produced a clone of
Henrietta, See, Skloot, R., The Immortal Life of Henrietta Lacks. Broadway Books, 2010, 2011 at p. 222,
237-38, 255, 289. A federal court has held that cells used in federally funded human embryonic stem cell
lines (pluripotent cells derived from the inner cell mass of the human embryos) do not comprise human
organisms. Sherley v. Sebelius 644 F.3d 388, 396 U.S. App. D.C.1 (U.S. Dist. Cal. Cir (2012) cert. den. U.S.
Supreme Ct. No. 12-454 (2013).
[8] Organism Definition, merriam-webster.com, http://www.merriamwebster.com/medlineplus/organism (accessed Sept. 27, 2016).
[9] Maureen L. Condic, When Does Human Life Begin? The Scientific Evidence and Terminology
Revisited, 8 U. St. Thomas J.L. & Pub. Pol'y 44 (2013) at 48.
[10] Id.
[11] Dr. Maureen Condic holds a doctorate in neurobiology from the University of California, Berkeley.
She currently works as Associate Professor of Neurobiology and Anatomy at the University Of Utah
School Of Medicine and is the director of the medical school’s human embryology curriculum.
[12] Maureen L. Condic, When Does Human Life Begin, A Scientific Perspective, Westchester Institute for
Ethics and the Human Person, 7 (White Paper, October, 2008).
[13] Dr. Condic testified in Planned Parenthood of Ind. V. Comm’r, (S.D. Ind. 2011) 784 F.Supp. 2d 892,
916-17 (emphasis added), aff’d., (7thCir. 2012), 699 F. 3d 962, cert. denied, ( May 28, 2013), __U.S__,
2013 WL 655224.
[14] 842 S.W.2d 588, at 593.
[15] 842 S.W.2d 588 at n.5, and n.15, referencing on other grounds, L.B., Andrews, The Legal Status of
the Embryo, 32 Loyola L. Rev. 357, (1986) but that article on p.363 claims embryos are undifferentiated
cell masses.
[16] 842 S.W.2d 588 at 594; referencing Robertson, In the Beginning: The Legal Status of Early Embryos,
(76 Va. L. Rev. 437, 445 ) (1990), and Robertson’s summary in that article of the findings of Clifford
Grobstein in The Early Development of Human Embryos, 10 J. Med. & Phil. 213 (1984) (sic) (1985).
Robertson, a member of the American Fertility Society, who testified at trial, (see endnote (1) of this
article) also opined that the trial judge in Davis failed to understand that the “… early embryo while
genetically unique, consist of just a few undifferentiated cells that will first form the placenta before the
embryo itself develops.” ( 76 Va. L. Rev. 437, 445 at 482).
[17] Grobstein, C., The Early Development of Human Embryos, 10 J. Med& Phil. 213 at 217.
[18] 842 S.W.2d 588,at 593,; Grobstein, Id., at 220-230.
[19] Wong, Loewke, Bossert, Behr, DeJonge, Baer, Pera, Noninvasive imaging of human embryos before
embryonic genome activation predicts development to the blastocyst stage. (October 2010) Nature
Biotechnology, Vol. 28, No. 10, p. 115 - 1120 and fig. 6; Stanford News and Medicine (2010) p.1-3;
http://med.stanford.edu/news/all-news/2010/10/earlier-more-accurate-prediction-of-embryo-survivalenabled-by-research.html (accessed Sept. 27, 2016). (Stanford); Video Lecture: Noninvasive imaging of
human embryos before embryonic genome activation predicts development to blastocyst stage, (2013).
Serono Symposia International (Pera, Serono lecture) including film of development at 3:50 to 5:20
https://www.excemed.org/resources/l3-non-invasive-imaging-human-embryos-embryonic-genomeactivation-predicts-development-blastocyst-stage (accessed Sept. 27, 2016).
[20] (Pera, Serono lecture) Id.at 9:42-10:22; Stanford (Id.).
[21] Edwards, Hansis, Initial differentiation of blastomeres in for four-cell human embryos and its
significance for early embryogenesis and implantation (2005, original publication, copyright 2010
Reproductive Healthcare LTD.) Reprod. BioMed. Online 11, 206-218; PII:S9999-9999(99)99910-1 DOI:
accessible at http://edwards.elsevierresource.com/ (accessed 9/27/2016).
[22] Id.,p. 1,2, Edwards and Hansis explain that unfertilized oocytes or eggs have two polarities, animal
and vegetal. Upon fertilization both the animal and vegetal polarities are in the first cell in the embryo,
known as a zygote cell. The zygote may divide into two cells by separating down a meridian plane,
resulting in each cell having animal and vegetal cytoplasm with full polarities. Edwards and Hansis report
that the second cell in the embryo, unlike the zygote, divides more equatorially, resulting in the
embryos’ third cell and later a fourth cell. The third cell has mostly animal cytoplasm and is believed to
give rise to the trophectoderm parts, such as the placenta. The fourth cell mostly has a vegetal
cytoplasm used by the germ line for the being’s potential to reproduce. Edwards and Hansis diagram
four-cell embryos in a tetrahedral arrangement with three cells close together and a large separated
fourth cell, which is believed to become the germ line. Id., at 3.
[23] Id.at 5.
[24] Pearson, Nature 418, 14-15 (4 July 2002) | doi:10.1038/418014a;
http://www.public.iastate.edu/~zool.433/Lectures/mammal.egg.assym.pdf (accessed Sept. 27, 2016).
[25] 842 S.W.2d 588 at 593.
[26] Condic, The Role of Maternal Effect Genes in Mammalian Development: Are Mammalian Embryos
Really An Exception? Springer, (2016) DOI 10.1007/s12015-016-9658-6. In addition data shows that in
human development only perhaps cells up to the four-cell stage of development are totipotent meaning
“capable of generating a globally coordinated developmental sequence” that is necessary to constitute
an organism. Condic, M., What Totipotency Is and Is Not, 23 Stem Cells and Development 796, 797 text
at Fig. 1 ( 2014).
[27] Colomer and Pastor, The Preembryo's Short Lifetime, The History Of A Word, Cuad. Bioet., XXIII,
2012/3 p. 677 at 678 http://www.redalyc.org/html/875/87525473007/index.html (accessed Sept. 27,
2016).
[28] Federative International Committee for Anatomical Terminologies and International Federation of
Associations of Anatomicists, Terminologia Embryologia, p. 10, n. 32 (April 21, 2010),
http://www.unifr.ch/ifaa/Public/EntryPage/ViewTE/TEe02.html (accessed 11/27//2015). (See also
Terminologia Embryologia, “Preface” and “User Guide,” available at
http://www.unifr.ch/ifaa/Public/EntryPage/PDF/TE%20Preface.pdf and
http://www.unifr.ch/ifaa/Public/EntryPage/PDF/TE%20User%20Guide.pdf, respectively.)
[29] Jeter v. Mayo Clinic of Arizona 211 Ariz. 386; at 388. (2005)
[30] 842 S.W.2d 588,at 604.
[31] Kass v. Kass (not reported in N.Y.S2d (1995);retrieved 1995 WL, 110368 at *3, Kass v. Kass 91 N.Y.
2d 554 at 557, 696 N.E.2d 174, 673 N.Y. S.2d 350, (1998); A.Z. v. B.Z., 725 N.E.2d. 1051, 1052, fn.1, 1056
fn.17, 1058 (Mass., 2000) (using terms "preembryos" and "prezygotes" and citing public policy not to
"force procreation"); Cahill v. Cahill, 757 So. 2d. 465, 466 (2000); J.B. v. M.B. and C.C. (783 A.2d 707, (N.J.
2001) (tissues); Roman v. Roman, 193 S.W.3d 40 (2006) fn.7 ( “joint property”); Dahl v. Angle, 572 194
P.3d 834 (2008) (personal property); Szarfranski v. Dunston 2015 IL. App. (1ST) 122975, par. 15, 34 N.E.
3d 1132 (June 12, 2015), cert. den.136 S.CT. 1230 (Mem) (2016) (your property with rights of
survivorship).
[32] The author wishes to thank Ania Urban, an intern at Thomas More Society in Chicago and University
of Chicago student majoring in biology, for her valuable assistance in writing this article.
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