The Gene Wars

By Patricia J. Williams, The Nation. Posted November 15, 2005.

In the beginning, there was a time when doctors treated pregnant women by listening to them tell of their symptoms.

There were no visuals, no color glossies, no T-shirts with the sonogram emblazoned. There was relative quiet in the womb, which took quiet to attend to. It required listening to the woman say, "This is what it feels like."

It required a palpating of the body, a laying on of hands. Midwives and doctors used touch, eyes, ears, measuring from the outside to get a sense of what was within -- sounds, motions, clues. It was the mother-to-be whose health was indicative of the condition of the embryo or fetus.

Whether life was deemed to begin at conception or whether with quickening, the interdependence of the womb and the woman was a given.

I'm certainly not advocating that we turn back the clock with regard to obstetric medicine, but it is arresting to recall that interconnectedness in a time when "life" has become increasingly divorced from traditional contours of the human body.

We live in a time when embryos and fetuses are gaining legal rights to sue, are attaining the status of persons, are being enshrined in a molecularly sized iconography of innocents to be saved. With technology, we can make visual what no generation has been privy to before. Like satellites homing in on a secret bunker from space, we have the spyware to case the joint -- the interior of the uterus, the cells, even mitochondria, and now DNA.

With all that comes interpretation, and politics, and ideology. And lo, the birth of "the unborn." The magnified fetus becomes an external, a separate entity. Women are no longer imbued with the halo-illuminated metaphors of ripeness and enfolding that underscore so many of our religious notions about women round with child.

At least or perhaps especially in the United States, we find ourselves tangled in new definitions of separation and individuation. There has been a restructuring, of our rhetoric as well as of certain religious ideologies, that expressly pits a woman's body against her fetus.

There is, these days, a tendency to conceive of the fetus as an entire person, and a litigious little person at that, with a warrior attitude and a long list of complaints that can be asserted against the madonna in question.

We've all read about negligence actions, criminal cases, child welfare cases, all involving fetuses still in utero. But the status of the fetus is no longer the most contentious part of the debate. It's moved further and further back in the developmental cycle.

Recently the Arizona court of appeals declined to rule that a set of cryogenically frozen fertilized eggs were "persons" for purposes of a wrongful death action, saying that such a designation was for the legislature. The lawsuit was brought by a couple who had sued the Mayo Clinic after its lab lost or possibly destroyed some of the eggs. The eggs were days old, still a clump of cells; nevertheless the court was careful to craft a special category for them: "pre-embryos."

Pre-embryonic status is thus not a biological designation but rather a new legal category, a way of dodging the political controversy engendered by those who believe embryos are calling out for rescue. As John Jacubczyk, president of Arizona Right to Life, stated the argument: "Life begins at fertilization."

Patricia J. Williams, a professor of law at Columbia University and a member of the State Bar of California, writes The Nation column "Diary of a Mad Law Professor."

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