Screwtape on “My Embryo”

In The Screwtape Letters, C. S. Lewis tells of a demon named Screwtape giving instructions to Wormwood, his nephew and a junior tempter, on how to tempt human beings. “The sense of ownership in general is always to be encouraged,” Screwtape intones. “The humans are always putting up claims to ownership which sound equally funny in Heaven and in Hell and we must keep them doing so.”

We might ask: what are some of these funny claims to ownership? Screwtape, again:

We produce this sense of ownership not only by pride but by confusion. We teach them not to notice the different senses of the possessive pronoun—the finely graded differences that run from “my boots” through “my dog,” “my servant,” “my wife,” “my father,” “my master” and “my country,” to “my God.” They can be taught to reduce all these senses to that of “my boots,” the “my” of ownership.

We may not be privy to Screwtape’s letters on the understanding of the meaning of the possessive pronoun “my” in “my embryo,” but judging from jurisprudential trends, we would be able to hazard a very good guess. A recent law review article in the Harvard Journal of Law & Public Policy by Anthony Jose Sirven does us a favor by doing just that.

Sirven notices that courts across the country have classified embryos not as persons, but as property of their progenitors—and as such, contract, property, and marital property laws apply to them. Thus Sirven observes that in one case, the Colorado Supreme Court understood the embryos of a couple seeking a divorce to be lacking the “status of ‘person,’” and to be their marital property instead. Thus, “an enforceable agreement between the parties regarding the[ir] disposition” would apply to the embryos. Should no agreement exist, the state’s equitable distribution laws would apply.

In another case, a Texas appellate court bifurcated the class of two types of embryos: in vivo and in vitro. Embryos in vivo enjoyed the protection of a Texas post-Dobbs personhood statute—but not so much the same kind of human embryos who happen to be in a different location, that is, in vitro. The divorcing couple in that case, with embryos from IVF, saw the court enforce their earlier IVF agreement (which had given the embryos to the husband), rather than recognize that the embryos in the deep freezer enjoy the protection of the personhood statute as their brethren in the womb would.

One of the judges on that court, Judge Kerr, wrote a concurrence that Screwtape would firmly have ordered Wormwood to hide from the humans’ attention and reason. Judge Kerr wrote, 

Frozen or not, embryos are human life—life that [Texas] law now protects . . . But is that life also worthy of some protection when it exists instead in suspended animation, in limbo? Ought that suspended life be treated as something more than the subject of lifeless property and contract law? (emphasis added). 

By one estimate, only 7 percent of IVF embryos make it to live birth. Many of the rest are indefinitely in limbo in the freezer or else sent to their destruction.

The mother in that case, Caroline Antoun, appealed to the Texas Supreme Court. The high court has since declined to take up the case. Meanwhile, she posted a query on X: “Did you know that embryos—you know[,] human material (made of sperm and egg)—are still considered property in the state of Texas? Didn’t we learn 177 years ago that #wedontownpeople[?]”

Quite right. She wouldn’t be the only one to ask, either. An Ohio appellate court in a different case came to the familiar conclusion that the in-vitro embryos of a divorcing couple were “marital property” to be governed by contract or else by equitable distribution laws. But then, things got interesting. The appellate court now juxtaposed, however obliquely, the treatment of embryos as property and the Thirteenth Amendment. That amendment was ratified on the heels of the Civil War, prohibiting slavery,  a legal relation in which people were owned and treated as chattel property.

Sirven has now walked us to the fork in the road. For what does “my embryo” mean, really? There are two roads to take: either the embryo is property—or else . . . a person.

If the embryo is property, why should it be that only the mother’s right seems to matter, particularly in abortion cases? As we grapple with the way forward after Dobbs, Sirven asserts that the father has basic due-process rights in the property that is his embryo under the Fourteenth Amendment. (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”) Thus Sirven argues that states should be concerned with the father’s due-process property rights—notice, hearing, substantive remedies—as opposed to focusing exclusively on the mother’s wishes.

But, of course, odds are that the cult of abortion holding sway over the culture with its incantation of “abortion as women’s health care” would have a hard time swallowing this pill.

Or is the embryo instead a person? After all, courts that don’t pay any attention to the father’s due-process property rights, Sirven points out, would imply, or might even simply hold, that the embryo is not properly understood as property. They might hold that people could not have ownership interest over embryos as a class, thus rendering any contracts over embryos, such as IVF or surrogacy contracts, unenforceable. As Sirven posits, it’s really not because embryos are living creatures that we have a hangup over this issue, is it? We have no qualms with calling our horses, sheep, cattle, and dog our chattel and thus our property. It’s because human embryos are human, and uniquely so, that we do.

Robert P. George has written that human embryos are embryonic humans. So it is that the reader of these pages and I both, as the persons that we are now, have in fact been the same persons—indeed the very same living bodily entities—ever since we were tiny embryos in our mothers’ wombs, each of us “a unified, self-integrating human organism.” But if that’s the case, and if the reader’s life and mine are protected by the law, should not embryos as persons enjoy the same protection? The Fourteenth Amendment guarantees the fundamental rights of persons, the foremost of which is life. John Finnis and Robert P. George have argued that the unborn are constitutional persons, and thus entitled to this very Fourteenth Amendment protection. Would that this be the law of the land, and soon.

Is there left another possibility, though? Might the embryo be neither property nor a person? Surveying the case law and scholarship, Sirven thinks that efforts by some to categorize the embryo as something that somehow occupies an intermediate category between the two, put simply, fail. And why? They fail because they “wind up applying black-letter property law in the end,” thus betraying that it’s really into the property category that the embryo is shoved.

Which brings us back to Screwtape. Should we persist in calling “my embryo” much as we do “my boots,” categorizing the embryo as our property and treating that human life as we do our chattel, we ought to recognize our own grotesque selves in Screwtape’s letters. Here he is again advising Wormwood against the ways of “the Enemy” (that is, God):

It is as if a royal child whom his father has placed, for love’s sake, in titular command of some great province, under the real rule of wise counsellors, should come to fancy he really owns the cities, the forests, and the corn, in the same way as he owns the bricks on the nursery floor. . . . Even in the nursery a child can be taught to mean by “my teddy bear” not the old imagined recipient of affection to whom it stands in a special relation (for that is what the Enemy will teach them to mean if we are not careful) but “the bear I can pull to pieces if I like.” 

We need only substitute “my teddy bear” with “my embryo” for where things stand with our laws. But wouldn’t Screwtape be pleased?

Image by New Africa and licensed via Adobe Stock.