The Embryo, the Image of God and Justice Tom Parker
Commentary by Nick Gier | FāVS News
“Welcome to Fertiletown: population 3,500 (including 1,214 in our freezers).” — Letter to The New York Times
After the Supreme Court overturned Roe v. Wade in 2022, 21 Republican state legislatures have passed even more restrictive abortion laws. On Feb. 16 the Alabama Supreme Court joined this move against women’s reproductive rights in a significant way. The justices voted to grant frozen embryos the rights of children.
Multiple Frozen Embryos Required
This unprecedented decision directly impacts in vitro fertilization, a medical procedure that allows infertile couples to conceive. The success of this procedure depends on fertilizing multiple eggs (the average is 15) that are frozen so that they can be implanted one at a time.
Multiple fetuses may not be wanted (think Octomom Nadya Suleman), and multiple births may pose a threat to the health of some mothers. IVF Dr. Emily Jungheim warns that “higher-order multiples are always going to lead to time in the neonatal intensive care unit. … If I can freeze embryos instead and have the woman come back later, it’s safer.”
Absurdities of the Court’s Decision
Absurdities abound in the wake of this decision. Do these “children” now qualify for child tax credits or at least additional tax deductions? Do their numbers count towards creating new congressional districts? As one letter writer to The New York Times quipped: “Welcome to Fertiletown: population 3,500 (including 1,214 in our freezers).”
Is Embryo Freezing Child Abuse?
The question of whether freezing an embryo constitutes child abuse has already been settled by medical science. A 2010 study on fetal pain issued by the London’s Royal College of Obstetricians and Gynaecologists concluded that “current research shows that the sensory structures are not developed or specialized enough to respond to pain in a fetus of less than 24 weeks.”
A more comprehensive review of 2,000 fetal brain studies published in the AMA Journal of Ethics (October 2014) confirms the British conclusion: “The capacity for functional pain perception in preterm neonates probably does not exist before 29 or 30 weeks.” of the fetal brain clearly show this lack of capacity.
Miscarriages: Acts of God?
Under normal circumstances only one in three embryos implant successfully, and that failure rate is much higher using IVF procedures. Furthermore, according to the journal BMC Pregnancy & Childbirth (2017), “43% of women reported having had one or more first trimester spontaneous miscarriages.” God causes all things and events, so all these miscarriages and failure to implant are, by necessity, divine acts.
Alabama Chief Justice Tom Parker, author of a concurring opinion, writes that “human life cannot be wrongfully destroyed without incurring the wrath of a holy God.” I certainly don’t want to sound facetious, but, in the case of miscarriages and failure to implant, doesn’t logic require that God turn his anger on himself?
No Exceptions for IVF?
The Alabama attorney general says he will not enforce the ruling even though IVF involves letting embryos die. (The Center for Genetics and Society estimates that “1.7 million embryos created for IVF have been thrown away,” and there may be as many as 1 million still frozen.) It would appear, however, that he is required to prosecute under the state’s wrongful death law.
Justice Parker makes it clear that there will be no exceptions for IVF: “This would be unacceptable to the people of this state, who have required us to treat every human being in accordance with the fear of a holy God who made them in his image.” In early March 2024 the Alabama Legislature ignored Parker’s ruling and passed a law protecting IVF providers and their patients from legal actions.
Parker’s deference to the authority of the Bible and Christian theologians is a clear violation of the Establishment Clause of the First Amendment. The decision is theocratic and an expression of Christian nationalism, a view, contrary, of course, to the founders, that insists that the U.S. be governed as a Christian nation.
Image of God: Original Meaning
Quite apart from the serious constitutional issues, I would like to comment on Parker’s misreading of the Bible and the Christian tradition. He claims that the embryo is created in the image of God, but he appears unaware of the biblical meaning of that phrase. I assume that he is, like most all conservative jurists, an “originalist,” which means that he is required to take meanings from scripture and similar phrases in surrounding Near Eastern languages.
The equivalent phrase “image and likeness of God” in Genesis 1:26-27 appears in an Assyrian inscription at Tell-Fekheriyeh. Here it has a hierarchical socio-political meaning, and it does not pertain to general human nature. This means that, with God’s permission, Adam has sovereignty over the world.
The Apostle Paul presents this ruling hierarchy very well. As the New Adam, Christ has the image of God, but Paul extends the image to males only: “Man is the image and glory of God; but woman is the glory of man” (1 Corinthians 11:7). Embryos have no gender so where does that leave them in the order of created things?
Embryos: Property not Persons
Until the Alabama court ruling, frozen embryos were considered the property of the prospective parents, and, significantly, this is compatible with the biblical view of children and even women. This is clear from Leviticus: “If the child be from a month old even unto five years old, then thy estimation shall be of the male five shekels of silver, and for the female thy estimation shall be three shekels of silver” (27:6).
Parker Gets Christian Tradition Wrong
Justice Parker quotes the great Catholic theologian Thomas Aquinas, but he neglects to tell us what Aquinas believes about what the image of God is. He maintains that it means the rational soul, the feature that distinguishes humans from animals.
Following the Greek philosopher Aristotle’s trimester view of fetal development, Aquinas believed that the “rational soul is created by God at the completion of man’s coming into being.” Aquinas’ view is supported by current science on fetal brain development. There are signs of a significant mental life only after .
Parker also refers to St. Augustine, but again, he did not bother to read about his view of the fetus: “The law does not provide that the act of abortion pertains to homicide, for there cannot yet be said to be a live soul in a body that lacks sensation.” (Augustine anticipates the conclusions of the doctors quoted above.) The Christian tradition generally follows Aquinas and Augustine in rejecting the idea that the fetus is a person from conception on.
Genetic Identity Is not Personal Identity
Writing for The Seattle Times, Carol Hill supports the Alabama decision primarily because she asserts that there is unique genetic identity from conception onwards. Personhood, however, is a moral and legal concept not a biological one. There is a possibility of twinning before 16 weeks, so twins would have the same genetic identity, but they would be recognized as two separate persons morally and legally.
Christians believe that God is a person, so human persons would not share anything biological with him. They do, however, share a mental life with their creator. Aquinas reasoned that would be possible only when they had developed a rational soul late in pregnancy. We have seen above that the fetal brain does not have this capacity until the end of the second trimester.
Common Law supports Roe v. Wade
Justice Parker also calls on the authority of Sir William Blackstone, whose views are essential to the foundations of English Common Law. Blackstone believes that human life is “the immediate donation of the great creator,” but somehow, Parker does not see a contradiction when he adds Blackstone’s quote: “human life begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.”
This is an imprecise point in fetal development that occurs between 16 and 25 weeks. We do know, however, that embryos do not move on their own, they feel no pain, they have no hearts and they have no brains.
That’s a lot to expect from 100 cells. Parker’s “little people” they certainly are not.
Note: Instead of referencing Sir Matthew Hale, a 17th-century witchcraft judge in his brief against Roe v. Wade, Supreme Court Justice Samuel Alito should have used Blackstone to support it. Note that Blackstone, by using the phrase “by contemplation of law,” viewed movement (“quickening”) in the womb as a legal standard for determining when abortions were legal. Not only was this the view at our founding, but it was used by courts throughout the nation until 1909.
The views expressed in this opinion column are those of the author and do not necessarily reflect the views of FāVS News. FāVS News values diverse perspectives and thoughtful analysis on matters of faith and spirituality.