Ethics,Human Oocytes and the Teleology of the Body: An Appreciation of Gilbert Meilaender’s Work

Introduction

In one of my favorite of his essays, Terra es Animata, Gilbert Meilaender seeks to illustrate a point about different conceptions of futility by describing one of the enjoyable pastimes of his youth. ‘Years ago, when I was younger and more carefree’, he wrote, ‘I used to enjoy going out at night in the midst of a hard snowstorm to shovel my driveway … Well before I had finished, if the snow was coming hard, the driveway would again be covered. Sometimes I’d do it again before coming in, though aware that those inside were laughing at me.’ ¹

It was, of course, fitting that he used this example of bodily engagement to make a point about an important matter in bioethics. Indeed, the argument in that essay about the natural trajectory of the body and how the body’s trajectory can inform our thinking about medical futility and bioethics generally is one of Meilaender’s signature contributions to the field. I want to pay tribute to the idea of a natural teleology of the body by considering its usefulness in relation to recent debates about the use of human oocytes. I find the idea of a natural substratum of bodily constraints fruitful, but I wonder if the sharp contrast that Meilaender appears to draw between embodied action and willful intention is sustainable. I will draw on the withering critique of John Robertson set out in Meilaender’s Body, Soul, and Bioethics to suggest that the conception of a natural teleology of the body cut off from intentionality cannot do the work Meilaender needs it to do. ²

How to Think about Human Oocytes

When Dolly, the cloned sheep, was first in the news, the bioethicist Alta Charo used the advent of cloning technology to reflect on the argument from potential that is common in debates about embryo status. Given that the prospect of cloning transformed every cell in the body into a potential person, the argument that potential persons have rights proved too much. Charo’s argument was a classic reductio ad absurdum, with the added benefit that she could quote Monty Python’s parody of Catholic teaching on contraception.

Every sperm is sacred.

Every sperm is great.

If a sperm is wasted.

God gets quite irate. ³

The growth in the use of oocyte cryopreservation by infertility clinics in recent years and the recent qualified endorsement of mitochondrial replacement techniques (MRT) by the NAS-sponsored committee that reviewed the ethical and social policy issues raised by MRTs might lead us to ask about the moral status of human oocytes. ⁴ The idea that sperm is sacred, that it has some kind of intrinsic moral worth, appears implausible. Would it not be equally implausible to talk about the moral worth of eggs? Substitute ‘eggs’ for ‘sperm’ in the Monty Python ditty and the answer would seem clear. Nevertheless, I want to suggest in this brief article that while it is a mistake to speak of the moral status of oocytes, it makes sense to talk about a natural teleology of oocytes. Thinking about the freezing of human eggs or mitochondrial transfer in terms of the teleology of human eggs may be useful.

Further, I want to suggest that Catholic tradition provides a useful lens for examining these matters. Charo cited Monty Python’s ditty about Catholic teaching to mock that teaching, but Catholic teaching is in fact useful in thinking about human oocytes. Indeed, I will draw on Catholic teaching in a variety of ways in what follows to suggest that we ought to take seriously the life-giving potential of egg and sperm. Every sperm (and egg) may not be ‘needed in your neighborhood’, as the ditty continues, but they are necessary to the continuation of human life. That is a fact that we ought to take seriously.

The first thing to observe is that to talk about an egg’s natural teleology is not the same thing as saying that an egg has a moral status. We need, in other words, to think about the teleology of sperm and egg separate from the issue of personhood. We need, that is, to talk about contraception and not abortion.

Of course, separating these two issues is difficult because debates about abortion often take place against the backdrop of concerns about contraception. For example, Catholic opposition to contraception is frequently framed in pro-life terms, and writers in the tradition have sometimes claimed that many forms of contraception are in fact forms of abortion. But there is another strand of Catholic teaching on contraception that is useful for thinking about the idea of a teleology of oocytes, apart from concerns about personhood. Aline Kalbian has recently explored this aspect of Catholic teaching at length, and it is worth attending to her account in some detail.

Catholic opposition to contraception has received a fair amount of attention in recent years because of the stance taken by the US Catholic bishops against the mandated insurance coverage of contraception provided by the Affordable Care Act (ACA). ⁵ Indeed, even before the Obama administration proposed mandated insurance coverage of contraception, the bishops were opposed to the ACA because they believed it would cover abortion. That belief grew, at least in part, from the conviction that emergency contraception involved the destruction of human embryos. Yet, as Kalbian points out, it is important to see that Catholic opposition to emergency contraception is not rooted simply in the belief that emergency contraception causes abortion; it also rests on a teleological view of sex as designed for procreation. ⁶

The significance of this point is that even if a form of birth control does not work by preventing the implantation of a fertilized egg or by causing an embryo to be expelled from a woman’s body, it still violates the natural teleology of sexual intercourse and is therefore morally problematic. For our purposes, it is worth noting that, notwithstanding this teleological view of sexuality, Catholic teaching allows for the use of emergency contraception in cases of rape. For example, directive #36 of the US Catholic Bishops Directives to Catholic Health Care Services states:

Compassionate and understanding care should be given to a person who is the victim of sexual assault. Health care providers should cooperate with law enforcement officials and offer the person psychological and spiritual support as well as accurate medical information. A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization. ⁷

It may seem surprising that Catholic teaching would prohibit the use of medication that prevents ovulation or fertilization in cases involving consensual intercourse but allow them in cases of rape. The reason is that the tradition understands the attempt to expel or incapacitate a rapist’s sperm as an extension of a woman’s right to defend herself against unjust attack. Because rape is defined as not a sexual act, a woman seeking emergency contraception cannot be understood to be intentionally undermining the teleology of sex.

Unlikely as it seems, then, attending to Catholic teaching on contraception, and particularly to Catholic teaching on emergency contraception in cases of rape, helps us to pry apart questions about moral status from questions about personhood. In fact, we see in Catholic teaching the significance of how the question of moral status is framed. Indeed, the frame here is central. When rape is framed as an assault, emergency contraception is understood as self-defense. When sex is consensual, emergency contraception cannot be understood within the frame of Catholic moral thought as self-defense and will be seen as itself an attack on the meaning of human sexuality.

The Importance of Social Framing

In using the language of ‘framing’ here I am drawing on Judith Butler’s important work, Frames of War. ⁸ Butler notes the effort that goes into controlling the visual and conceptual narratives that structure our experience of war. As she puts it, these frames of war ‘delimit public discourse by establishing and disposing the sensuous parameters of reality itself—including what can be seen and what can be heard’. ⁹ ‘The frame’, she continues, ‘does not simply exhibit reality, but actively participates in a strategy of containment, selectively producing and enforcing what will count as reality’. ¹⁰ Because Butler is concerned about the social conditions necessary to apprehend the lives of others as grievable, her analysis ranges widely; she explores frames of war, to be sure, but she also offers what she describes as a new bodily ontology.

At this point, her work is helpful, not just methodologically by drawing attention to the epistemological significance of framing, but substantively by questioning the utility of personhood as the frame for thinking about the value of life. In noting the importance of the ability to grieve lives and the recognition of the precariousness of lives to that ability, Butler attempts to show that debates about personhood can obscure the vulnerability of all life. She writes: ‘Precarious life implies life as a conditioned process, and not as the internal feature of a nomadic individual or any other anthropocentric conceit. Our obligations are precisely to the conditions that make life possible’. ¹¹

Talk of ‘the conditions that make life possible’ helps us to see that the moral significance of sperm and eggs cannot be understood if our attention is primarily directed to questions about personhood. And this is true, even if the category of person is expanded to include potential persons. If our focus is on personhood, then Charo is right to mock the idea that every sperm or egg is sacred. The moral significance of sperm and egg is connected to the life-giving potential they embody, not to any status they have as potential persons.

The importance (but also the enormous challenge) of reframing debates about assisted reproductive technology (ART) in terms other than those of embryo status can be seen by noting what Charis Thompson refers to as an ‘ontological choreography’ that defines and redefines bodily parts, processes and outcomes to serve procreative intent. ¹² Consider, for example, Thompson’s discussion of two cases she observed doing fieldwork in an infertility clinic. The first involved gestational surrogacy, where the surrogate is the sister of the genetic father of the embryo she carries. The second case involves in vitro fertilization (IVF) with donor eggs. The two cases help to illustrate the notion of ontological choreography because they display how procreational intent shapes our understanding of ‘reality’ here. On the one hand, the two procedures are isomorphic. Both involve the use of in vitro fertilization to create an embryo that will be gestated by a woman who is not the genetic mother. On the other hand, the procreational intent in the two cases is dramatically different. In the first case, the surrogate is expected to do the work of gestation and then disappear from view. In the second case, the woman who gestates the embryo understands herself to be the ‘real’ mother of the child and expects the egg donor to vanish. As Thompson puts the point, ‘the two procedures draw on substance and genes as natural resources for making parents and children, but they distribute the elements of identity and personhood differently’. ¹³

What counts as ‘natural’ (substance or genes) and what counts as ‘kin’ (blood, intended kinship, or genes) are fluid. This is particularly striking in the first case where the surrogate is the father’s sister. Concerns about incest are thus near the surface in this case and must be held in check.

What Thompson’s work demonstrates is that the metaphor of ‘family building’ is just barely metaphorical. In ARTs, families are constructed out of reproductive parts: eggs, sperm, placentas, uteruses, embryos, mothers, fathers, brothers, sisters are all underdetermined and in need of social elaboration. The infertility clinic is thus a kind of construction site and ‘both nature and society are deployed strategically in this painstaking, highly constrained work of construction’. ¹⁴

A considerable irony emerges at this point. If Thompson is right, then the contested nature of ARTs is a product of the field’s own success. Nowhere is this clearer than in relation to the embryo. To be sure, abortion has long been a contested social issue, but it was not until the advent of in vitro fertilization that the early embryo took on normative moral status. IVF clinics were about making babies and so what they had in their petri dishes, and later in cryopreservation tanks, must be babies. Embryos thus came to be understood to have a kind of narrative, biographical trajectory. The fact that this assigned status raised problems for both those who supported IVF and ARTs generally and those who opposed them was largely ignored at the start. The problems, tensions and paradoxes inherent in this construction of the embryo, as what might be described as a biographical baby, only emerged over time.

In the case of pro-life opponents of abortion, IVF presented difficult choices. For example, in Catholic teaching, the tradition had urged that human life be protected from conception. Before IVF, however, this position did not require any sustained attention to the early embryo. Thus, when the Congregation for the Doctrine of the Faith issued its Instruction on reproductive technology, Donum Vitae, in 1987, it proclaimed itself agnostic on the personhood of the early embryo. ¹⁵ ‘The Magisterium’, it said, ‘has not expressly committed itself to an affirmation of a philosophical nature, but it constantly reaffirms the moral condemnation of any kind of procured abortion.’ ¹⁶ The problem with treating the IVF embryo as if it is a person, as opposed to as a person, is that it leads the tradition to condemn the life-affirming pursuit of infertile couples when there is no certainty that IVF kills persons. When, later, embryonic stem cells were derived from IVF embryos, the ‘as-if’ position of Donum Vitae led the Catholic church to oppose research that holds great promise for alleviating human pain and suffering, but for highly speculative reasons. Opposing IVF and embryonic stem cell research is fine if the embryo is a person from conception, but much less compelling if we must treat the embryo as a person because we do not know whether it is.

By 2008, the Vatican appeared to recognize the difficulty of the view set out in Donum Vitae and offered a stronger statement.

If Donum vitae in order to avoid a statement of an explicitly philosophical nature, did not define the embryo as a person, it nonetheless did indicate that there is an intrinsic connection between the ontological dimension and the specific value of every human life. Although the presence of the spiritual soul cannot be observed experimentally, the conclusions of science regarding the human embryo give ‘a valuable indication for discerning by the use of reason a personal presence at the moment of the first appearance of a human life: how could a human individual not be a human person? Indeed, the reality of the human being for the entire span of life, both before and after birth, does not allow us to posit either a change in nature or a gradation in moral value, since it possesses full anthropological and ethical status. The human embryo has, therefore, from the very beginning, the dignity proper to a person. ¹⁷

This position has the benefit of more firmly grounding opposition to IVF and human embryonic stem cell research, but it leads to some puzzling positions. For example, Robert George and Christopher Tollefsen adopt this view of the embryo and begin their book, Embryo: A Defense of Human Life, by telling readers the story of Noah Benton Markham. Markham was trapped in a hospital that was flooded by the wind and rain of Hurricane Katrina. Fortunately for Markham, seven Illinois Conservation Police officers and three Louisiana State officers braved the storm and rescued him. According to George and Tollefsen, ‘Noah has the distinction of being one of the youngest residents of New Orleans to be saved from Katrina: when the Illinois and Louisiana police officers entered the hospital where Noah was trapped, he was a [frozen] embryo’. ¹⁸ Noah’s story, they say, had a happy ending.

If the notion of an ontological choreography directed by procreative intent was unclear before, I hope this example helps clarify how both nature and society are jointly implicated in negotiating accounts of ontology. A fertilized egg is no different today than it was before the development of in vitro fertilization. But after IVF, the fertilized egg becomes embedded in a narrative of baby-making that ramifies throughout bioethics and leads to enormously contentious public policy disputes focused on the status of the embryo.

When the baby-making narratives that drive infertility treatment are taken to their logical conclusion, it may well make sense to talk about the death toll of Hurricane Katrina being 1400 lives lower than it would have been had the Illinois and Louisiana police officers not retrieved canisters of liquid nitrogen from the flooded hospital. But though treating the embryo as a personal presence may follow from defining a fertilized egg as a person from conception, there is also something deeply peculiar in saying that Noah was rescued from the flood. Perhaps this is why the Catholic Church concludes that frozen embryos should not be thawed and ‘adopted’ by couples. Given Catholic teaching, thawing and gestating embryos would, in fact, be ‘saving’ the lives of children, but the Vatican nevertheless says that doing so would be wrong. ¹⁹

If the narrative of baby-making and the frame of fetal personhood that surrounds IVF have posed problems for pro-life advocates, the conflicts for pro-choice advocates are even more severe. We can see this by noting the centrality of the idea of procreative liberty to most defenders of ARTs. What should have been obvious from the start, but was not, is that reproductive technology is as much about making parents as it is about making babies. This is why procreational intent is central to the ontological choreography that Thompson documents. A better term might have been ‘parental intent’, but the point is that ‘nature’ (sperm, eggs, uteruses, babies) and social institutions (family, law, kinship) are orchestrated in an effort to serve those who are not parents to become parents.

Can Teleology Alone Constrain Social Framing?

Nowhere has the tension between ‘making parents’ and ‘making babies’ been more palpable than in the work of the legal scholar, John Robertson. The title of Robertson’s major book-length treatment of ARTs, Children of Choice, signals the centrality of procreative liberty in his work. Indeed, Robertson has spent a career arguing for the primacy of procreative liberty over other moral considerations, when assessing reproductive technologies. Yet, if the title of Robertson’s book would suggest that he is focused on the children produced through the intentions of those who would be parents, a close reading of his work shows that he is really concerned with the freedom to become a parent and to control bodily autonomy, which includes one’s reproductive capacity. Procreative liberty, Robertson says, involves the ‘freedom to decide whether or not to have offspring and to control the use of one’s reproductive capacity’. ²⁰

Robertson acknowledges that the freedom to have and rear offspring (and to control one’s reproductive capacity) can conflict with both respect for prenatal life and with the welfare of offspring, but the freedom to become a parent trumps concerns about the offspring one may produce or rear. The irony here is that the intuitive appeal of Robertson’s argument about the importance of procreative liberty rests on the widely accepted conviction that having children is of ‘central importance to individual meaning, dignity, and identity’. ²¹ Yet, for Robertson, it is not the children who are central; it is choice. This is why Robertson is prepared to accept substantial harm to the children conceived through ARTs (and to accord no real respect to prenatal life) as the price of the freedom to become a parent, however one chooses.

Now anyone familiar with Meilaender’s work on reproductive technology knows that he has been a fierce critic of the idea that intent determines the meaning of procreation. It is thus worth reviewing his scathing critique of John Robertson’s idea of procreative liberty as set out in Children of Choice to see if Meilaender provides us with the resources for resisting the idea of a socially constructed ontological dance.

Meilaender begins by noting that Robertson understands procreative liberty very expansively. Robertson acknowledges that reproductive technology allows us to separate genetic, gestational and social parenting, but suggests that procreative liberty includes the freedom to separate what is ordinarily united. As Meilaender puts it, for Robertson, ‘the exercise of reproductive liberty does not require any biological tie at all to the offspring produced’. The ‘connection of parent and child protected by the right of reproductive liberty is almost entirely a product of will’. ²²

Because parental will is severed from a natural biological substratum, says Meilaender, Robertson can offer no coherent account of moral constraints on the use of reproductive technology. Robertson wishes to rule out technology designed to produce offspring that are better than ‘normal’ or worse than ‘normal’ or who are cloned but he has no meaningful way to do so, once he allows autonomy and intentionality to trump all. Meilaender writes that Robertson’s appeal to actions that ‘deviate too far from the experiences that make reproduction a valued experience’ is a ‘last-ditch attempt to find limits to a freedom that no longer presupposes any natural substratum and fails to pour meaning back into a concept that has become entirely the impoverished creature of human will’. ²³

I am deeply sympathetic to Meilaender’s critique of Robertson. I certainly agree with him that Robertson’s reduction of moral evaluation to the assessment of harm to offspring and Robertson’s disdain for the idea of symbolic harm is deeply problematic. But I cannot help but wonder whether Meilaender’s focus on the body over against the will is fully adequate to explaining and constraining the role of intentionality in assisted reproductive technology, including the use of human oocytes.

Meilaender is certainly not wrong to explore how talk of procreative liberty is really a proxy for claims of bodily autonomy or to note how the narrative frame of ‘making babies’ easily becomes a narrative about ‘making parents’. And Meilaender’s work helps us to see that once making babies and pursuing parenthood are pried apart by appeals to procreative liberty, it is a short step to understanding procreative liberty as controlling reproductive capacity, even when no child will result. But I am not convinced that stressing human embodiment instead of human willfulness is the appropriate corrective here.

Judith Butler observes that when a frame breaks with itself, its ‘taken-for-granted reality is called into question, exposing the orchestrating designs of the authority who sought to control the frame’. ²⁴ We saw an example of this phenomenon at the start of this article when noting that the Catholic frame that structures the sexual act as indivisibly unitive and procreative necessarily breaks with itself in the face of rape. When this happens, the orchestrating designs of authority with respect to contraception are revealed. We now see that the two frames that have structured debates involving both reproductive technology and the non-reproductive uses of reproductive capacities ultimately crack under the pressure of attempting to turn every debate about ARTs and their sequelae into a discussion of the moral status of the embryo.

The construct of personhood that gives shape (in radically different forms) to both the pro-life and pro-choice positions that have framed bioethics debate in the past fifty years is simply inadequate. A pro-choice, liberal, individualism that focuses on procreative liberty breaks with itself when it is forced to acknowledge that life is precarious and is not individually self-sustaining. Butler knows the political problems that will emerge if a pro-choice position moves away from insisting exclusively on the right to bodily autonomy for individual women, but life is precarious and cannot be sustained without acknowledging the necessity of a social ontology that moves beyond liberal individualism. ‘There is no life’, Butler writes, ‘without the conditions of life that variably sustain life, and those conditions are pervasively social, establishing not the discrete ontology of the person, but rather the interdependency of persons, involving reproducible and sustaining social relations, and relations to the environment and to non-human forms of life, broadly considered’. ²⁵

In similar fashion, a pro-life frame that reduces discussions of ARTs, abortion, embryonic stem cell research and other controversial issues to consideration of fetal personhood fails to acknowledge that no genuinely pro-life position can ignore the fact that sustaining life is a social project. This project must also accept the fact that all individual lives eventually come to an end. For that reason, it is not possible to say with certainty and in advance that there is an absolute right to life. This is why Butler says that ‘the question is not whether a given being is living or not, nor whether the being in question has the status of a “person”; it is, rather, whether the social conditions of persistence and flourishing are or are not possible’. ²⁶

Taking account of the social conditions of persistence and flourishing necessarily requires taking account of intentionality, just as it requires taking account of the material (or bodily) conditions of persistence and flourishing. Even if we do not wish to go so far as Thompson and talk about an ontological choreography, Kalbian’s commentary on Catholic teaching demonstrates why intentionality is important and cannot be replaced by talk about the teleology of the body. On the Catholic view, ‘contraception is wrong not simply because it prevents pregnancy, but because it involves a “contraceptive intention”—one that implies “an interior rejection of the substance of one’s sexuality in its procreational dimension”’. ²⁷ Because a woman is defending her body from assault, she is not rejecting the teleological dimension of sexuality. Hence, using emergency contraception is not wrong.

Note here that talk about a natural substratum of sex or procreation or the teleology of the body cannot ever be fully cut loose from issues of intentionality. Meilaender is justifiably suspicious of Robertson’s talk about the ‘centrality of reproduction to personal identity, meaning, and dignity’. ²⁸ He properly notes that Robertson ‘never takes up rigorously the question of whether those who wish to experience only biological parenthood, only rearing, or only gestating, are doing the same thing as those who hold these aspects of parenthood together’. ²⁹

Meilaender italicizes ‘doing’ in this passage, but notice that action and intention are connected; doing and intending are related. If we return to the anecdote with which we began and ask whether Meilaender’s shoveling snow in a driving snow storm is futile, we need to know what he intended if we are to know what he was doing. Shoveling in the midst of a fierce snow storm is futile only if the goal is a clean driveway. One could describe what Meilaender was doing as getting exercise, not clearing his driveway. And this might make a lot more sense if he has a contract with a snow plow driver to clear the driveway in the event of a storm. Of course, whether he is clearing his driveway or getting exercise, the bodily movements would be the same in either case; nevertheless, one action would be futile and the other not.

Let me end by articulating my point in relation to a question that is useful to ponder in reading almost all of Meilaender’s work. ‘Should the fact that human beings are embodied, that the body is the place of our personal presence, set limits on our understanding of what is right and good?’ Meilaender’s answer is that we cannot know what is right and good if we do not take seriously our embodied existence. Fair enough. But while the body is the place of our personal presence, the will is also a manifestation of that presence. And just as we cannot know whether Meilaender’s shoveling in the snow storm is futile without knowing what his intention in shoveling is, we cannot know whether, say, a particular form of reproductive technology is wrong simply by asking whether a bodily genetic connection between parent and offspring is secured. What this means in the case of human oocytes is that it will never be enough to talk about a natural teleology of the oocyte in isolation from the intention behind any given use of human oocytes. We need to consider how any particular use of human oocytes is related to their natural teleology. And the only way to do that is to ask what is intended by their use.