Welcome to my Birthday Rights Blog. I look forward to working with the Thomas More Society on a series of blog articles to promote the right to a Birthday Celebration for all human beings.

Is birth the basis for equal human rights or creation? For example, England was a country that had recognized the Divine rights of a King. A doctrine of Divine right dealt with the idea a monarch was pre-ordained to inherit the crown. In contrast, the Declaration of Independence 1776 declared that all men were created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. In both these scenarios, the unalienable rights given were not from a governmental body. In the United States the duty of government is to secure or protect these unalienable rights. The United States of America rejected that one human being was created unequal to another with respect to the right to Life, Liberty, and the Pursuit of Happiness. Human rights are not derived from the government, but just are inherent.

Laws are created to protect and secure unalienable rights. For example, 18 U.S. Code sec. 3596 provides that a sentence of death is not to be carried out upon a woman while she was pregnant. The recognition that unborn innocent life has value and deserves protection existed at the beginning of our nation. Bathsheba Spooner the first woman in the United States to be executed in 1778 had requested a stay of execution claiming she was pregnant. She was allowed to be examined for being with child before execution, but the Harvard law Review of 1889 later critiqued the qualifications of those who did not diagnose the existence of the unborn child. A post-mortem examination had shown when the mother was executed so was her unborn child. While in the Spooner case the safeguard to prevent execution of the unborn child with the mother failed, the case is important for recognizing an unborn child has a separate life and life should not be terminated for the criminal acts of the mother who carries the Life.

Another example, of laws to protect the unborn are laws making the killing of the unborn child in the womb a crime. See, the Unborn Victims of Violence Act, 32 Public Law 108-212, 18 U.S.C. § 1841: 10 U.S.C. § 919a. A listing of the states with fetal homicide laws can be found at: State Laws on Fetal Homicide and Penalty-Enhancement for Crimes Against Pregnant Women, NATIONAL CONFERENCE OF STATE LEGISLATURES, May 1, 2018, http://www.ncsl.org/research/health/fetalhomicide-state-laws.aspx [https://perma.cc/3XTG-WDLB]. State laws have also permitted post humous children to inherit. Many states have laws allowing civil remedies for prenatal injuries.

What about the unborn who are in-vitro or in a glass container artificial womb environment are they human organisms? Yes, the unplanted embryo has all the components necessary for continued development, just like all human beings who need food and shelter for survival. Federal Law has long recognized there is a difference between a cell and an embryo. The Dickey-Wicker Amendment prohibits federal funding for human embryo-destroying research and defines a human embryo as “any organism derived by fertilization.” What is a human organism? Scientific research has demonstrated that the fusion of sperm and egg plasma membranes— “a rapid event that takes less than a second to complete”—immediately yields a new human organism. Maureen Condic, When Does Human Life Begin? The Scientific Evidence and Terminology Revisited, 8 U. St. Thomas J.L. & Pub. Pol’y 44, 46 (2014) see also id. at 47, 75, 79 fig.1 (concluding, based on a survey of the latest embryological research, that “the zygote is formed in the first instant of sperm-egg plasma membrane fusion, with all subsequent events of the first day of life being acts of the zygote, not acts that form the zygote”).

How can the unplanted embryo be a sperate human being before implantation in the womb? Earlier caselaw thought the human body was not created until implantation. Today scientific research has shown the components that make up the inner cell mass that give rise to the human body are present from the very first one cell embryo called a Zygote. embryo is not just a clump of undifferentiated cells. Robert G. Edwards & Christoph Hansis, Initial Differentiation of Blastomeres in 4-Cell Human Embryos and Its Significance for Early Embryogenesis and Implantation, 11 Reprod. BioMed. Online 206 (2005), reprinted in Reprod. BioMed. Online Tenth Anniversary Edition at 94 (2010). Indeed, this is why an embryo created in another’s body, or in-vitro, prior to implanting in a womb can be taken and transferred to a different womb to continue the same growth and development that every human has been through. Buster, J.E., Bustillo, M., Redi. I.A., Cohen, S.W., Hamilton, M., Simon, J.A., Thorneycroft, I.H., and Marshall, J.R. (1985) Biologic and morphologic development of donated human ova recovered by nonsurgical uterine lavage. Am. J. Obstet. Gynecol. 153:211-217. In fact, the National Embryo Donation Center has reported that frozen or cryopreserved embryos given to them by the biologic parents of the embryos to be transferred to another non-biological parent to be birthed, have resulted in over 1,033 births as of March 19, 2021.

So, if a one cell embryo or a zygote has all the components for growth and development when placed in a nurturing environment, just like an infant or an elderly or physically challenged person, and all people are dependent on others, it follows that the unalienable rights are present because a human being is present. Were the embryos in a womb, they would have the protections given to other embryos in a womb. Yet because case precedent has failed to recognize the humanity of the human embryo in disputes between parents as to the fate of their embryos in storage, the courts have treated this class of unimplanted embryos not as human beings, but disposable property, except in the state of Louisiana which does not allow embryos created in the state to be destroyed. . LA-RS Sec. 129

Two states have moved closer to respecting the unalienable right to life in the unimplanted embryo

The state legislature in Arizona has treated stored embryos more humanly in declaring that in the case of a dispute between parents of the embryos the right to continued life trumps destruction or termination of the embryo’s life. The statute, Ariz. Rev. Stat. § 25-318. a.k.a. the Embryo Statute, went into effect in August 2018. The legislature recognized the “right to procreate or not is moot after an embryo is created. The State of Georgia was the first state to protect the embryos by having a law recognizing embryo adoption. Georgia Code 19-8-41.

The Supreme Court in Roe v. Wade, 410 U.S. 113 (1973) permitted a privacy right to bodily integrity to allow a mother to terminate a pregnancy, Roe did not find an absolute right to have an abortion, which almost always kills the unborn. Sometimes when pregnancies are terminated the offspring survive. In Roe’s factual context the woman’s privacy right (articulated as a right to bodily integrity) prevailed over the rights of the unborn child, but in a different factual context, see Gonzales v. Carhart, 550 U.S. 124 (2007), the balance tipped the other way. In Gonzales, the Court sustained a federal law prohibiting the D&E partial birth method of abortion after finding that the state’s interest in preserving fetal life at the moment of birth outweighed a woman’s privacy right to terminate her pregnancy.

The unimplanted embryos are not violating a woman’s bodily integrity so there is no privacy right to be weighed against the unborn’ s unalienable right to life. In the case of unimplanted embryos they are already living and surviving in an artificial womblike environment. Embryos chosen to be frozen or cryopreserved are not dead embryos, they are viable with full potential to complete the cycle of life. There is no mandate for a biological mother to bear her child. The embryo is not dependent on the biological mother for continued life. So, in cases where the mother does not wish to bear the embryo created with her egg and the father’s sperm, should the embryo’s inalienable Right to Life, Liberty and the Pursuit of Happiness be protected or are they deemed a class of humans created unequal?

Louisiana has said yes to protecting human unimplanted embryos and another can bear the embryo. Arizona, in cases of parental dispute over the embryos fate, the legislature chose to protect the embryo’s unalienable right to life if articulated by a parent. What will be done with the growing number of embryos in storage without an advocate for their unalienable rights?

Will state governments and clinics be allowed to continue to label embryos as property, and use them as property for experimentation when someone would accept the embryos and help the embryos continue life? Can judges decree the destruction of human life by labeling embryos as “pre-embryos”,” genetic material” or some other sub-human name, even though human embryos are members of our human species, and human beings at a stage of development that we all went through with the same inherent unalienable rights that we want the Government to protect?

Or will more people and state legislatures or our Congress and Court in this nation realize that all human beings deserve to have governments that support protection of unalienable human rights? We live at a critical time in history to work to protect unalienable rights and protect members of our own species from being treated as property. Otherwise, we are down a path of creating human life for experimentation and undermining unalienable rights.

P. S. Ponderings for the Christian lawyer on this day March 25----How old was Christ when he encountered John the Baptist in Elizabeth’s womb? When did the Word become Flesh?