Delaying Parenthood via the Cryopreservation of Live-Born Children

The unintended consequences of blurring embryonic and human rights

The Alabama Supreme Court recently issued a [ruling](https://newrepublic.com/post/179122/alabama-supreme-court-bible-embryo-ruling-ivf) blurring the lines between embryonic and human rights. This case

LePage vs. Mobile Infirmatry Clinic, Inc.dealt with the case of an in-vitro fertilization clinic and wrongful death liability lawsuits. In this case, an intruder broke into an IVF clinic and dropped several trays containing embryos, which were destroyed in the process. The court ruled that these embryos were legally indistinguishable from human beings, and thus their destruction was litigable under the state’s wrongful death statutes. The court ruled that the parents of the embryos could sue the clinic for the loss of frozen embryos under the same legal process that for example, parents might sue a daycare that was so negligent a child died under their care. As far as the Supreme Court of Alabama is concerned, a single cell embryo and a live born fully formed infant are legally indistinguishable. They are both simply people.

Now, others have commented on the legal can of worms this opens up. Can a woman claim an embryo on her taxes? Could someone in theory have a large number of embryos created, store them in a freezer in their basement, and claim an absurd number of dependents on their taxes? Could a state clone millions of embryos, keep them in a warehouse somewhere, and use these phantom people to inflate their population for Congressional representation and federal funding? And on and on.

In short, there are very good reasons we have traditionally treated embryos and actual living humans as legally distinct. Pregnancy is fraught and dangerous. Somewhere between a quarter and an outright majority of pregnancies end in miscarriage. A good portion of these miscarriages occur in very early pregnancy, to the point where a pregnant person may not even know they were pregnant and had a miscarriage. Will somewhere between 1/4 and 1/2 of pregnancies end in a charge of negligent homicide? There aren’t enough prisons on earth to house all the offenders. If a parent allows a living child to perish, then police naturally get involved. But our legal system simply isn’t equipped to handle the harsh reality that a large portion of pregnancies simply don’t make it to term. If life begins at conception, than our average life expectancy would be decades lower. Most pregnancies may not make it to term. And there are so many risk factors that it’s inevitable that every pregnant person has done at least something that can increase their risk of a miscarriage. If you know a person that has given birth, they’ve probably had a miscarriage. And they probably had some behavior that marginally increased the risk of that miscarriage. If you know a person who has given birth, and embryos are people, that person has likely committed negligent homicide. Under this legal environment, a third of the population is likely guilty of negligent homicide.

There are other problems as well. For example, there are many things we do to embryos that we would never to do live children. And one of those things is that while freezing embryos is fine, freezing live born children absolutely isn’t.

Freezing embryos is a long-established practice. Modern IVF treatments would be impossible without it. You can freeze embryos for any reason you want. You can freeze them as part of a regular IVF cycle. You can freeze them to store for later rounds of IVF. You can freeze them because you don’t want kids now but might some day in the future. Adults are given wide latitude to freeze embryos. The law treats this as a harmless act without any penalty whatsoever. In fact, it’s a standard practice of reproductive technology. You can use them, freeze them, or throw them away; they are property.

Freezing live born humans is of course the opposite. You can’t give birth to a full-term infant, put it on ice, and then tell a judge, “I’m just not ready to be a parent right now, and I’m saving the child for when I’m a bit older.” No court would buy that argument, and it would simply be murder.

This distinction came out of practical technical realities, but it is reflected in the law. We simply don’t have the ability to freeze humans, even newborn infants, and revive them. Embryos on the other hand can be frozen and successfully revived. Freezing a full-term infant is an instant death sentence; freezing embryos does allow you to save them for later. And again, traditionally the law supports this. The benefit of having birth define personhood is that it draws a clear bright line on which to base laws. The law doesn’t have to determine precisely where the dividing line is. A legislature doesn’t have to figure out just how far into development an embryo can legally be frozen. Instead, the law can simply consider freezing of any born human to be murder. Birth serves as that clear bright line. A person is simply any human that can survive out of the womb, and freezing people is legally murder.

But the problem with blurring lines is they blur both ways. Those on the right want to blur the line between embryos and children, because they want to provide some of the legal protections to embryos that children currently enjoy. What they miss is that once that line is blurred, some of the things we currently only allow for embryos may in turn bleed over onto children. When you blur a line, you blur it both ways.

To get a feel what this looks like, consider again freezing and cryopreservation. Recall, in a legal environment where the line between embryos and children is blurred, birth can no longer be used as a clear line. You can no longer simply outlaw something before or after birth. Instead, you have to write definitions that apply regardless of gestational context. You might, for example, pass a law defining freezing a human, whether adult, child, or embryo, as murder if the freezing process is irreversible. We do not have a way of freezing and reviving adult humans, so freezing them is indistinguishable from murder. Laws could be, and will need to be, written to not base any of their criminal definitions on pre/post birth status. Defining criminality based on the viability of thawing would be one way to write a cryo statute that was independent of gestational status.

But if statutes, including statutes on cryopreservation, murder, wrongful death, etc. can no longer be based on pre/post birth status, a new possibility arises that I have not heard mentioned in prior discussions of this topic.

Most are aware that cryopreservation is not truly possible with today’s technology. We do not have the ability to freeze and revive an adult, or even an infant, after being frozen. Yet, we can freeze embryos and other cell cultures. The reason for this comes down to ice crystal formation. When freezing large organisms, it takes time for heat to work its way into or out of tissues. And if freezing does not occur very rapidly, then ice crystals will form that can shred cell membranes. The people being frozen today at death are not simply frozen; they are well and truly dead; their cells are shredded to molecular ribbons by the freezing process. People opting for cryopreservation are gambling that in the far future godlike technology may be developed to repair them. It’s an expensive bet, but if the alternative is to be guaranteed dead, well, it’s easy to see why some might give it a go. If someone has a lot of money and few people they want to will it to, throwing a few hundred grand on a one in a million chance is a choice some will make. People who are frozen today are hoping to literally be brought back from the dead; they are not simply in a kind of deep sleep. They are well and truly dead.

Anyway, it is hopefully common knowledge that human beings can’t be frozen and revived. While it is possible to freeze and revive embryos, it is not possible to freeze and revive living humans. Cryopreservation viability is a function of body size. Which means that there must be some critical threshold between single cell embryo and fully grown adult at which freezing and reviving becomes impossible.

This is all well known. What is less well known is that this threshold is actually surprisingly large. It is in fact possible to freeze and revive complex, fully grown, multicellular organisms, mammals even. Biological complexity is not a barrier to the process; raw size is. And the limit seems to be a creature about the size of a hamster. Scientists were freezing and reviving hamsters back in the 1950s. In fact, a bit of scientific historical trivia is that the countertop microwave was in part first invented to help gently revive frozen hamsters.

While this is an interesting anecdote, it has seemingly little relevance to humans. Except, remember again, this is all about body size. And as humans grow from embryos to full-sized adults, they must, at some point, pass through the size of a hamster…

The mass of a European hamster is between 220-460 grams. The earliest premature birth ever to survive was 338 grams. The earliest preemies to ever survive were born at about the weight of a hamster. In other words, the earliest viable preemies are quite possibly within the range of viable human cryopreservation.

To my knowledge, this has never been tested. Just getting such research through IRB would be damn near impossible. But it does show that there very well may be an overlap between the earliest age of human infant viability and the latest age of viable cryopreservation. And if this is the case, an intriguing and disturbing possibility emerges - cryopreservation not at the end of life, but the beginning of it.

In principle, it may be possible to do the following. A pregnant person or couple could carry a pregnancy until the thin zone where birth and cryo viability overlap. Then, a deliberate extremely premature delivery could be induced. Finally, the resulting early preemie could be placed on ice, frozen solid, and placed in freezer for later use. When the person or couple decides they want to raise a child, the frozen child can be placed in a microwave, defrosted, and brought back to health in a neonatal care unit. In principle, this process may actually be possible. This wouldn’t require any sci fi technology. It may be doable entirely with currently existing technology, tools, and standard practices.

Personally, I would find this morally horrifying. Children shouldn’t be frozen. Period. Yet, I also don’t think there’s anything wrong with freezing clumps of cells. Freezing live children is an abomination, while freezing embryos is harmless. I’m perfectly fine with this separation, but such dichotomies based on birth are apparently no longer possible. Here again is the problem with blurring the clear line of birth. You don’t just extend the rights of children to embryos; you also extend the practices of embryos onto children. If legally embryos are no different than live born children, then the only way to outlaw a practice like freezing (other than banning it entirely) is to define it not by birth status, but by viability. And if it is legal to freeze an embryo because it can later be revived, then it should be legal to do the same to a very premature infant

Interestingly, this could end up as a weird form of contraceptive in states that outlaw abortion. Instead of terminating a pregnancy when the embryo is just a clump of cells, people would instead wait until late in pregnancy. They would induce an early birth and then put the resulting child on ice. If a child and embryo are indistinguishable, then it should be perfectly legal to freeze infants if they can later be revived. And this could serve as a very strange form of contraception. People could keep these children frozen and simply never get around to reviving them. They can keep them on ice until they themselves die of old age, at which point they would become wards of the state. The state could then also pay to preserve them indefinitely or adopt them out. Regardless, the parents would be able to put off or avoid the challenges of parenthood, just as they would through contraception. Cryopreservation used as a warped form of contraception, possible only in the moral funhouse mirror world of fetal personhood.

Some might object to this on the grounds that freezing of live infants, even preemies, certainly would have some fatality rate associated with it. Normally, a procedure that killed 5% of the infants who received it would never be approved medically. However, a [5% loss rate](https://www.fertilitysmarts.com/embryo-freezing-and-thawing-what-you-need-to-know/2/2081) is normal for embryo freezing. When you freeze a number of embryos, you simply accept that some of them are going to be lost. And this has been legally acceptable for quite some time. And again, if there is no distinction between embryo and child, an elective medical treatment that killed 5% of the children that receive it may be perfectly legal. You might consider freezing a very early preemie to be murder. But as long as a good argument can be for viability, then legally it likely wouldn’t be. In the states that have pushed so hard to fight abortion, they could ultimately end up creating something far more horrible than they ever imagined. Instead of having unwanted pregnancies peacefully terminated in the first trimester, states instead become legally and ethically responsible for the caretaking of millions of abandoned preemies hovering eternally somewhere between life and death. In fighting what they saw as a monster, they may end up creating an even greater one.

Now, whether this is truly possible is up for debate. We know that certain kinds of hamsters can be frozen and revived. But I was not able to find the precise masses of the hamsters frozen back in the 1950s. So it’s possible there isn’t actually a mass overlaps between embryonic and cryopreservation viability. Also, it’s possible that what works on hamsters would not work on premature infants. Treatments that work well on rodents often don’t translate perfectly to even fully healthy humans, let alone extreme preemies. And even if it could work, the loss rate would likely be a lot higher than 5%. Still, from a legal perspective, it may not matter. As long as a good argument could be made that a frozen preemie had a half-decent chance of revival, then someone could argue that their child was simply in a developmental pause, rather than truly being dead. And when all you need is “beyond a reasonable doubt,” such arguments may fly. And if that legal precedent could be established, there is a possible future where the deliberate induction of premature birth combined with cryofreezing of premature infants is used as a form of what is effectively contraception. Legally, you would not be terminating a pregnancy at all. Rather, you would simply be putting it on an indefinite pause.

Will this actually ever happen? Impossible to say. And it’s certainly possible the courts can cobble together some internally inconsistent hairbrained legal theory for why this isn’t allowed. And I certainly don’t support this form of “contraception.” Instead, I find this most useful as a thought experiment or example of the ethical minefield that results when the lines between embryo and child are blurred. Abortion opponents hope to make embryos legally children so that they can extend some of the rights and protections of children onto embryos. What they will find, however, is that that bright line wasn’t there to harm embryos; it was there to protect actual children. Embryos, in a practical and legal sense, exist in a weird gray area somewhere between life and death, between child and inanimate object, between nail clippings and a human with rights. We do things to objects that we should never do to people; and we often do things to embryos that we would never do to live born children. Previously, the bright line of viability and birth has served to carve out protections for living humans. But with that line blurred, some of the practices we employ on embryos will inevitably bleed over to our practices on how we treat infants. We will treat embryos more like people, but in turn we will treat people more like objects. When you blur a line, you blur it in both directions.