Happy “Birth” Day? A Thought Experiment
Sooner than we might expect, many of us may be invited to attend a birthday party that will not actually celebrate a birthday. At least not in the true sense of the word. And yet, we’ll probably go along as if it does—for reasons you’ll better appreciate in a moment. But before I digress, allow me to set the scene:
Suppose your son’s preschool classmate, Charlie, is turning five and his parents reach out to invite you, your wife, and your son—as Charlie’s good buddy—to attend his party. It’s set for Saturday. So after work on Friday, you stop by to pick up a gift your wife reserved for him; once you get home, she wraps it nicely and writes a congratulatory note to Charlie on a card she bought. The next day, upon arriving, your son runs up to hand his buddy the gift you got him, and they go off to play with all the other kids. You hang back to talk with the other dads; the moms do the same while keeping a close watch on the kids.
About an hour later, everyone gathers around a festive table as Charlie’s parents light five candles on a party-themed cake. Kids and adults alike join in singing “Happy Birthday” and, once the song ends, the room cheers Charlie on as he blows out the candles and takes the first slice. Your son, your wife, and you then plate one for yourselves and congratulate Charlie and his parents once more before making your way out. All this while knowing, full well, that what you just celebrated was no birth-day at all.
The reason? Charlie was never born.
Charlie, as he will one day learn, is one of the thousands—and, over time, possibly millions—of human beings who will have been gestated entirely outside of a human womb. That is, in an artificial one. He can thus point to no moment when he ever entered a womb, nor any moment when he left one. Charlie, strictly speaking, was never born.
This thus raises the question: is Charlie a rights-bearing “person” under our Constitution?
For many scholars, the word “person,” as used in the Fourteenth Amendment, requires a birth. They proceed as though the mere act of exiting a womb confers not just moral, philosophical, or theological worth, but legal rights as well. Speaking about her recent book, Personhood: The New Civil War over Reproduction, Professor Mary Ziegler acknowledges she doesn’t challenge whether an unborn child is “biologically human or alive”—she takes that as a given; her gripe is about whether the child is entitled to “constitutional rights” before being born. She is not alone. Even leading conservatives, like the late Judge Bork, have pushed the view “that those who adopted [the Thirteenth and Fourteenth] Amendments addressed only the rights of persons who had been born.” And since then others, like Ed Whelan, have voiced agreement with Bork’s view, too. But skepticism about pre-birth personhood was perhaps best captured by how Justice Antonin Scalia once (rather flippantly) put it during an interview with 60 Minutes, quipping: “I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.”
So, on their logic, Charlie wouldn’t be entitled to the same rights you and I enjoy—or, for that matter, any personal rights at all. He would not, and could never become, a rights-bearing “person” within the meaning of the Fourteenth Amendment, no matter how much like the rest of us Charlie may be. Birth is a prerequisite for constitutional rights, as they see it.
Yet leaps in reproductive technology may force those in that camp to rethink their stance.
In December, a research lab in China—with help from biologists here in the U.S.—published the results from studies they conducted after experimenting with artificial-womb-like technology. As told by the MIT Technology Review:
At first glance, it looks like the start of a human pregnancy: A ball-shaped embryo presses gently into the receptive lining of the uterus and then grips tight, burrowing in as the first tendrils of a future placenta appear. This is implantation—the moment that pregnancy officially begins. Only none of it is happening inside a body. [It is happening at a] Beijing laboratory, inside a microfluidic chip, as scientists … [have] taken human embryos from IVF centers and let the[m] merge with “organoids” made of endometrial cells, which form the lining of the uterus.
The piece goes on to clarify that these embryos were destroyed once they turned “two weeks old, if not sooner,” citing “ethical” restrictions that “typically” stop “scientists from going any further than 14 days.” But ethics aside, “I think this technology does raise the possibility of growing [embryos] longer,” commented Jun Wu, a biologist at the University of Texas Southwestern Medical Center in Dallas, who helped with the experiments. “[S]ome view the research as an initial step toward creating babies entirely outside the body,” he commented. And his experiments fall in line with still others (that we know about) aiming at the same thing—like ones at the Children’s Hospital of Philadelphia, where researchers are placing fetal-lamb tissue into fluid-filled “biobags” that mimic natural wombs, opting for the euphemism “biobag” to get around “the political” backlash “attached to the term ‘artificial womb,’” as reported by The Guardian.
No longer, in other words, can this all be brushed off as science fiction. Whether in a few years or, perhaps, a few decades, soon enough we will meet someone like Charlie and it will force us to confront the question of who, exactly, is entitled to legal rights—or, more pointedly, who is not.
The point I hope to land here isn’t only that “birth” has never offered anything more than an arbitrary line for “personhood.” Though that’s certainly part of it. The larger point is that constitutional “personhood” isn’t a question we can push off much longer; technology will make us face it sooner than some might prefer. And unless we’re willing to say that Charlie and others like him are not “persons,” the only coherent—if not practical—answer we’ll be left with is this: Charlie became a person the moment he was conceived. Birth played no role in that.