Penetrating the Word Maze 
Richard Bube

Taking a look at words we often use-and misuse... 
This column has been a regular feature of Perspectives on Science and Christian Faith since June 1988, and has been written by Richard H. Bube, Professor of Materials Science and Electrical Engineering at Stanford University, Stanford, California. This is the last of eleven columns. 
Because this is the last column, we depart from our usual practice of considering only one or two words, and focus instead on a recent court case that dramatically illustrates the problems of penetrating the Word Maze. 

From: PSCF 42 (December 1990): 254-256.

In 1989 a court case hit the news media with dramatic impact. It was the case of Junior L. Davis, Plaintiff, vs. Mary Sue Davis, Defendant, and vs. Ray King, M.D. from the Fertility Center of East Tennessee, A Third Party Defendant. During nine years of marriage the Davises had not been able to achieve natural conception and resorted to in vitro fertilization techniques at the Fertility Center of East Tennessee. After several attempts had failed,  

On December 8, 1988, nine ova were aspirated from Mrs. Davis, nine ova were inseminated with Mr. Davis' sperm...and the nine ova were fertilized. The zygotes were permitted to mature under laboratory conditions, variously developing from the four-cell cleavage stage to the eight-cell cleavage stage. ... On December 10, 1988, two of the embryos were implanted in Mrs. Davis, neither of which resulted in pregnancy, and the remaining seven embryos were placed in cryogenic storage for future implantation purposes. (1) 

In the next few months the marriage of the Davises came to an end. Mr. Davis sued for custody of the frozen embryos in order to destroy them, and Mrs. Davis responded since she wished to keep them either for implantation in herself or for donation to the Fertility Clinic for the use of others. On September 21, 1989, W. Dale Young, Circuit Judge of the Fifth Judicial District, Tennessee, handed down his decision vesting temporary custody of the seven embryos to Mrs. Davis. In early 1990, Mrs. Davis, now remarried, declined use of the frozen embryos for herself and stated her intention of donating them to the Fertility Clinic.  

What is of interest for us here is the reasoning used by Judge Young in arriving at his conclusion. Quite independently of whether we might agree with his decision or not, his approach provides striking examples of what it means to bog down in the Word Maze, based on words that we have discussed in previous columns. The following references are taken from "Findings of Fact and Conclusions of Law, an Appendix to Opinion of the Court."1 
1.  That determination is to be made by the answer to the most poignant question of the case: When does human life begin? This is, however, not a question at all. The zygote is human, i.e., it is characterized by human genetic material. The zygote is alive, i.e., it shows the characteristics of being alive at its stage of biological development by growth from single cell to multiple cell form. Human life evidently begins at conception. 

2.  Are the embryos human? Certainly the embryos are human. They are as human as any creature can be at their stage of biological development. 
3.  Does a difference exist between a preembryo and an embryo? This question exercised the Court to a considerable extent and we will say more about it below. A reference in Appendix C of the document says the following:  

Preembryo: The human entity existing before the passage of fourteen days of development, prior to attachment to the uterine wall and the development of the primitive streak. The term is used by some to distinguish a difference between a zygote in its early stages and an embryo in its later stage.  

4.  Are the embryos beings? This is a difficult question to answer indeed, unless we specify what is meant by beings. Embryos are living, human creatures; if this is sufficient to define being, then embryos are beings. But the implication behind the use of the word being is usually equivalent to speaking of a person. If that were the implication, then embryos are not beings, i.e., not persons.  

5.  Three of the experts, however respectfully disagree with Dr. Lejeune that the human embryos are in `being;' that is, in `existence; conscious existence; as, things brought into being by generation ...' or living, alive. The three experts insist that the entities are at a stage in development where they simply possess the potential for life. This particular comment confuses "being," "existence," "conscious existence," and "alive." There is no question about whether the frozen embryos are "in conscious existence;" clearly they are not since the organs necessary for conscious existence are not present. There is also no question but that they are alive, and not merely in possession of the potential for life. Hidden behind all of these words is the unstated question of "personhood." It is also clear that the frozen embryos are not persons, but have the potential for developing personhood in the future given the proper environment. 
6.  One of the experts, Prof. John A. Robertson, is quoted as saying "... at about 10-14 days, the preembryo attaches itself to the uteran wall, develops its primitive streak and life then commences." Again special significance is being attributed to the word "life" that goes well beyond what it means to be alive.  

7.  By contrast, another of the experts, Dr. Jerome Lejeune, is quoted as saying, "When the first cell exists, all the `tricks of the trade' to build itself into an individual already exist. Shortly after fertilization at the three-cell stage, a `...tiny human being...' exists ... As soon as he has been conceived, a man is a man." Here the potential to develop into an individual person is equated with being a "tiny human being." Now this raises no problems if "a tiny human being" is taken literally; for the zygote is "a tiny human being." But it is by no means "a tiny human person," and that seems to be the impact of the words used here.  

8.  A statement by the Ethics Committee of the American Fertility Society as quoted in the Opinion of the Court makes a real contribution to the issue and is consistent with the kind of position that we have tried to clarify in previous Word Maze considerations.  

A third view-one that is most widely held- ...holds that the preembryo deserves respect greater than accorded to human tissue but not the respect accorded to actual persons. The preembryo is due greater respect than any other human tissue because of its potential to become a person and because of its symbolic meaning for many people. Yet, it should not be treated as a person, because it has not yet developed the features of personhood, is not yet established as developmentally individual, and may never realize its biologic potential.  

But the Court rejects this position on the following grounds: "The Court has made a thorough search of encyclopedias and dictionaries of which the Court may take judicial notice and the Court can nowhere find the word `preembryo' defined nor can the Court find even a reference to that term."

It is clear that the term "preembryo" has been selected by the Committee to take account of the intermediate phase between fertilization and implantation, in order to emphasize the critical role of the implantation step to enable future development of the potential for personal human existence. But the Court chooses to ignore it on the grounds that no encyclopedias or dictionaries refer to it. In fact the Court goes still further: "The Court finds and concludes there is no such term as `preembryo'; that to use the term in the context of this case creates a false distinction, one that does not exist. The Court finds and concludes the seven cryopreserved entities are human embryos." But this appears to miss the point that the use of such words as "life," "alive," "human," "being," and "embryo" resolves nothing unless agreement is reached on what these words mean, and unless it is perceived that none of these words expresses the personhood of either the embryo immediately before implantation or of the embryo immediately after implantation. 

9.  The Court is not alone in this confusion.  Mr. Davis asserts That the embryos do not constitute life, but have the potential for life

10.  The Court states further: "The argument that the human embryo may never realize its biologic potential ... is statistically and speculatively true, but is a hollow argument." The Court then goes on to argue that because a newborn baby may not realize its potential, or because a newborn baby cannot survive without someone taking care of it, we do not dispute that the baby is a human being. But this argument misses the point that the newborn baby is at a stage of biological development far more advanced than that of the pre-implantation embryo; the baby's very closeness to the full development of that potential to be a human person demands that the baby receive the utmost care in being enabled to complete that development.  

11.  The answer then, to the question: When does human life begin? "... the Court finds and concludes that human life begins at the moment of conception; that Mr. and Mrs. Davis have accomplished their original intent to produce a human being to be known as their child." The Court is right: Human life does begin at conception. But it does not follow that the pre-implantation embryo is a human being-if the word "being" is used, not to mean simply an existing entity, but, as appears to be the case here, to mean a human person, a child.  

In the cross-examination of Dr. Jerome Lejuene by Mr. Charles Clifford, the following entries are found in the court transcript. I suppose that there is no more appropriate way to end this discussion of frozen embryos-or for that matter to end this series on the "Word Maze," than to quote this section of the transcript.  

Q. I take it, Dr. Lejeune, from your testimony that you would be opposed to abortion. 
A. Oh, I dislike to kill anybody. That is very true, sir. 
Q. I take it, again, your basis of that belief would be that the fetus or embryo is an early human being? 
A. Exactly. If it was a tooth, I would not worry about it. 
Q. What is this? 
A. Well, from here I suppose it's an egg, but I'm not sure. 
Q. Let me get a little closer. 
A. It looks like an egg. 
Q. It's an egg? 
A. It looks like. 
MR. CLIFFORD: Thank you, Doctor, I thought you were going to tell me it was an early chicken. 
Q. All right. Let's talk about the difference for a moment. If I had in this hand a live chicken, would you agree with me if I were to take it and squeeze its head that it would feel pain? 
A. Oh, probably. 
Q. That it will be frightened? 
A. Yes. 
Q. And it would suffer psychological, if you can use that term with a chicken, stress? 
A. I'm not competent in psychology, ... and especially not about chickens. 
Q. But if I take this egg and assuming it is fertilized-and I wouldn't really do this-but if I were to crush it in my hand, this egg would not feel pain, it would not be aware in the slightest of what was happening to it? 
A. Yeah. But it would still be a chicken and only a chicken. 
Q. I thought you told me it was an egg? 
A. You told me it was a chicken. 
MR. CLIFFORD: No further questions.  

Thanks for your patience! I hope that I've challenged you to think a little more carefully about what critical words mean and how we use them. Don't WORDs aMAZE you? 

1No. E-14496. In the Circuit Court for Blount County, Tennessee at Maryville, Equity Division (Div.I). Junior L. Davis, Plaintiff, v. Mary Sue Davis, Defendant, v. Ray King, M.D., d/b/a Fertility Center of East Tennessee, Third Party Defendant, "Custody Dispute Over Seven Human Embryos." Includes the Opinion of the Court, and the testimony of Dr. Jerome Lejeune. Copies may be ordered at cost for postage and handling from: Center for Law & Religious Freedom, 4208 Evergreen Lane, Suite 222, Annandale, VA 22003.