Embyonic Personhood: Implications for Assisted Reproductive Technology in International Human Rights Law

I. INTRODUCTIONPicture a person. What do they look like? Are they a fully-formed human being, capable of communicating advanced ideas? A toddling child? A fertilized egg in a petri dish? International human rights law attempts to advance a recommended set of protections for governments to follow when enacting laws for their citizenry.1 But what is a "human"? Do human rights protections extend to embryos created in the course of infertility treatment and stored in freezers for later use? If so, what might this mean for assisted reproductive technologies such as in-vitro fertilization (IVF), in which the creation and development of embryos looms so large?Granting embryos personhood has significant implications for IVF-an area of medical practice that renders procreative sex2 unnecessary for impregnation. IVF is an increasingly popular option for those who wish to conceive a child.3 During the IVF procedure, an egg is fertilized by a sperm out-of-utero; the resulting embryo is then implanted in the uterine wall of either a biological or gestational mother.4 During IVF (and procreative sex), a sperm that meets an egg creates a zygote, which is considered an embryo from the moment of conception until about the eighth week of pregnancy.5Since IVF is about 35% effective at producing a viable pregnancy,6 medical practitioners recommend that those looking to conceive via IVF fertilize several eggs at a time.7 The process of egg retrieval is expensive, painful, and arguably dangerous.8 Thus, rather than repeat the entire process each time, couples may choose to freeze "leftover" pre- implantation embryos to use in the future, either to try for more children or for use in case of an unsuccessful implantation.9 If embryos are granted personhood status under the law, these "leftovers" could be considered people, with all the rights that a person has under each nation's constitution.10 Disposal or destruction of these embryos would be tantamount to murder, potentially for both the parents and the medical personnel assisting in the IVF process.11This Article analyzes the legal personification of embryos worldwide through the lens of human rights treaties. Its scope concerns the pre- implantation embryo-namely, embryos conceived as a result of assisted reproductive technology12 for the specific purpose of in-vitro fertilization.13 Assertions in this Article are based on three interlocking assumptions: (1) once rights are granted to a developing entity, they cannot be lost at a later stage of development; (2) if a country declares that a fetus is not a legal person, it likely will not grant an embryo personhood; and (3) if a fetus has legal personhood at a young fetal age, a country may be more apt to find that a fertilized embryo is a person. In other words, when discussing a continuum of rights, a country is unlikely to find that reproductive materials14 possess rights, then lose them, and then regain them at a certain point in pregnancy.15This Article analyzes the rights that are triggered when considering embryonic personhood status through the lens of human rights treaties and case law from both United Nations-based and regionally-based international bodies.16 This Article argues that the very idea of embryonic personhood is incompatible with the right to privacy, the right to life, and the principle of non-discrimination. It further argues that in the absence of an explicit pronouncement declaring IVF to be encompassed under an existing human right, it can and should be included where treaty bodies issue reports and recommendations on reproductive rights.Part II introduces the concept of personhood and discusses the potential implications of pre-implantation embryonic personhood on IVF and those who access IVF, in addition to the reproductive justice implications of IVF access. Part III analyzes the concept of personhood under human rights law, concluding that current human rights treaties could be read either to support or discourage legal personification of embryos, depending on who interprets the treaties and which rights are emphasized. …