Borderlands of Life: IVF Embryos and the Law in the United States, United Kingdom, and Germany

Abstract

Human embryos produced in labs since the 1970s have generated layers of uncertainty for law and policy: ontological, moral, and administrative. Ontologically, these lab-made entities fall into a gray zone between life and not-yet-life. Should in vitro embryos be treated as inanimate matter, like abandoned postsurgical tissue, or as private property? Morally, should they exist largely outside of state control in the zone of free reproductive choice or should they be regarded as autonomous human lives and thus entitled to constitutional protection like full-fledged citizens? Administratively, if they deserve protection, what institutional and policy mechanisms are best suited to carrying out the necessary oversight? Using a method termed comparative problematization, this article traces divergent answers to these questions produced in three countries—the United States, United Kingdom, and Germany—across the last twenty-five years. Comparison reveals distinct bioconstitutional foundations that give rise to systematically different understandings of each state’s responsibilities toward human life and hence its particular treatment of claims on behalf of embryonic lives.

Comparing Germany and Israel regarding debates on policy-making at the beginning of life: PGD, NIPT and their paths of routinization

“…8 The protection of the extra-corporeal embryo is evident in the German unique legal limitation which allows the freezing of fertilized eggs at the pronuclear state, while limiting the cryopreservation of pre-embryos. The German embryo protection law (1991) also stipulates that no more than three embryos can be created per cycle of IVF and all three, regardless of their quality, must be transferred to the patient's womb at one time, and cannot be frozen or discarded (for a more general discussion of IVF regulation in Germany see Jasanoff and Metzler 2020).…”

Bioconstitutional Imaginaries and the Comparative Politics of Genetic Self-knowledge

“…By comparing state decisions about how testing for APOE genes should be conducted in three societies, we surface subtle differences in each state’s approach to framing and governing the preconditions for responsible decision-making. As also noted in the accompanying article by Jasanoff and Metzler (2020), such differences persist across time and are not contingent on specific political constellations or interest group formations. They belong in the realm of collective imaginaries of the good society, which include ideas of how to use science and technology for the public good (Jasanoff and Kim 2015).…”

“…These fundamental differences in conceptions of good biological citizenship (Rose 2007) help explain the nature of APOE and DTC testing in each country. Each national settlement (Jasanoff and Metzler 2020) rests on specific conceptions of what it means to disperse diagnostic knowledge about future health among actors both public and private, professional and lay. Those conceptions, in turn, illustrate different understandings of where responsibility should lie for balancing the risks and benefits of enhanced genetic self-knowledge.…”

Constitutionalism at the Nexus of Life and Law

“…In contemporary knowledge societies, science and technology are deeply implicated in the workings of governance. Yet, it is a mistake to see scientific and technological change as external drivers of problematization (Jasanoff and Metzler 2020), so that technological novelty unidirectionally destabilizes established legal rules, and when technoscience advances, law lags behind. Rather, we argue that the notions of rightness, judgment, and rule that inform imaginaries of lawfulness also influence the definition and acceptability of objects and practices of knowing.…”