Discussions about the humanity of the embryo, product of the male-female union, arise as one tries to formulate premises that facilitate the legalization of abortion and the practices that threaten the very existence of the new being. In this context, it became necessary to coin the term "pre-embryo." This procedure is not new. From antiquity, people have questioned the humanity of other persons every time it became necessary to use arguments to exploit or terminate them.  Slaves? An example. Barbarians? Second-class humans. Today, this process takes on a new meaning in the new perspectives opened by biology. Should we legalize everything we do and everything we can do? Should we not first declare the human reality of the embryo and then grant him/her a legal status that guarantees his/her right to life from the moment of conception? (Counseling for Pregnant Women in Germany; Dignity of the Human Embryo; Right to Abortion; Medical Interruption of Pregnancy; Voluntary Interruption of Pregnancy; Safe Motherhood; Partial Birth Abortion; Assisted Procreation and IVF; Pro Choice).

Introduction: the core of the debate

     The previous definition of the humanity of the embryo is at the core of the debate about the use of "stem cells" obtained from human embryos. However, that is not the only problem. There is also the question of the manipulation of embryos for different scientific or commercial purposes; the generation of "spare" embryos in the process of artificial insemination, where their destiny is destruction or death; the use of chemical or mechanical means with abortive effects such as the "morning after pill," or the "IUD" (intrauterine device). For many, at the beginning of their existence-until the moment of "implantation"-the embryo is not human. It is called a "pre-embryo," a tiny, amorphous conglomerate of "multipotent" cells, which do not allow the embryo to be described as an "individual".

     Consequently, some assert that during the period between the formation of the "pre-embryo" (commonly called "conception" or "fertilization") and the first or second week (according to different positions), the "pre-embryo" is not "human" and thus does not have rights, but only the protection that legislators are willing to grant it.

     That does not mean that this "pre-embryo" is consciously considered an unimportant or valueless "thing." Man protects beings or things more or less strictly according to human interests (economic, political, cultural, religious, moral, etc.). He can protect artistic and historical goods, endangered animal or plant species, etc., not strictly for the sake of the good being protected, but for man's own sake. From this perspective, the protection can never be absolute. It always requires a "cost-benefit" analysis of different values or interests. Because of this, the thing or being protected could yield its protection to benefit other interests judged to be absolutely or relatively more important.

     The "pre-embryo" may be protected -there aren't many examples of concrete protections-but these protections may yield to the scientific demands for research on elements that benefit human health, or the material needs of artificial fecundation, oriented to satisfy the human interest in procreation, or conversely, human interest in non-procreation, all of which allow destruction of the embryo. The "pre-embryo" can be frozen, stored, altered or destroyed providing there is an end strong enough to justify the means. The "pre-embryo" is an object, not a subject, and hence is an instrument that depends on the ends that man defines from a position higher than that of that "something", which, even though it will turn into a human being, is not yet human.

     Of course, this position has not been quietly accepted. Many of us, from different viewpoints, consider that at the very moment of "conception" a new human being is created, one different from his generators, and thus a legal person and not an object of relative protection. This is the core of the debate: Is the conceived-the "pre-embryo", or embryo, whatever we want to call it [1] -a subject of rights, a person? If so, it is also entitled to rights, which, among the ones we call fundamental-is life, the foundation of all the other rights: dignity, physical and psychic integrity-all of which are absolute, and as such they should be guaranteed under any circumstances.

The person: a creation of legal civilization

     Article six of the Universal Declaration of Human Rights states that: "Every human being has the right to recognition everywhere as a person before the law." In this way the concepts of "human" and "person" are united, or even better, those of "human" and legal "person or subject" entitled to rights are united. The American Convention on Human Rights is still clearer. It states in article 1, item 2 that: "...a person is every human being."

     Hence there is an absolute assimilation: every human being is a person before the law, and if, under law, a person is an entity entitled to rights (subject of rights and entitled to legal protection by ordinance), such entitlement is necessarily granted to every human being. However, this has not always been the case. The history of rights has gone through periods in which not all human beings were considered persons. This turned humans into objects of legal relationships-for example, buying and selling-rather than subjects of rights.

     The legal concept of "person" and its application to every human being is a creation of legal or juridical civilization especially influenced by Christianity. Every human being is a person and all human beings are "equally" persons, that is, there are no degrees of personhood or entitlement and (legal) possibility of enjoying such rights. There are no second-class human beings-the legal structure forbids it-there are no persons who to possess fundamental rights have to be of a certain age, have a particular social or economic condition, belong to a political party or religious faith, have a particular racial origin or sexual orientation, a specific skin color or state of health, physical or intellectual capabilities, nor even the use of reason. A mentally challenged person, one in a merely "vegetative" state, a child, an invalid, all are persons.

Humanity and legal personhood

     These are legal findings which are supported by biological, philosophical, moral and religious affirmations. All men are equal because they are biologically equal. There is a fundamental biological community among men which science has proved through the equality and particularity of human DNA. The "carrier" of a specific type of DNA is a human being, who belongs to a biological species that we call "human," and is a member of "humanity." Because he or she is a being, not a thing, we call him or her a "human being."

     Of course, the concept "human being" transcends mere biology. All human beings are equal in dignity. The human being, simply by being human, "deserves" dignity. Humanity is in itself a dignity, an inherent, fundamental and absolute value or worthiness that confers a corresponding dignity on its members. A human being has absolute worth, absolute dignity.

     Philosophy searches for the essence of all that exists, and in that search, it has not been difficult to discover that among the different men and women of all generations and whatever circumstances, there is a common link, an essential identifier: humanity. Like all the other animals, we recognize those of our own species, not only in an instinctive manner, but rationally, understanding the universal concept "human" from its existential realizations. If I am, in my humanity, essentially equal to others, what I deserve as a human being, the other also deserves. Our "other," in an extended sense, is fully human, and "I should not do to others what I do not want others to do to me," according to a basic established rule of morality.

     These basic philosophical and moral reasons are reinforced in the light of religion. Women and men are created by God and have Him as their end. Everybody is equally transcendent, equally dignified by his/her origin and his/her enduring future. We are all children of the same Father; we are brothers and the brother is the closest "other," the neighbor. What most brings men together is their humanity, and for many, God Himself became our neighbor-human -in order to save us. For these reasons, for the law, every man or woman is a person, that is to say, equally entitled to rights. Personal quality is synonymous with human quality. If the law did not give this answer, equal dignity would be frustrated, as it was when the legal solution was different.

Equal, but not always

     Legal civilization has advanced a long way, as we have said, even though there have been practical drawbacks and structural setbacks. However, the XXI Century still suffers from the legal burden of the nefarious Roe vs. Wade [2] rule: it is not possible to discuss or legally define the humanity of the unborn.[3] Moreover, since the Constitution does not describe the unborn as a person, he/she is not entitled to absolute legal protection. When the unborn is by definition a non-person and devoid of rights, the interest of the States in protecting the unborn as well as the right of the unborn to be protected do not prevail over the interests of the mother as expressed in her rights to life and health, to decisions relevant to her own body, to her privacy, and to the choice of her "own life-style." Obviously, none of these rights,[4] would provide any grounds for appeal if it were the life of another person; such rights could not be exercised if they brought about the death of another human being.

     Please note that the Court did not deny the humanity of the unborn - it would have been daring to have done so. It denied that they are legal subjects as it did in Dred Scott vs. Sanford,[5] which denied that blacks could be citizens of the United States. The blacks did not belong to the same category as the white people; they did not enjoy the same legal subjectivity. That is why they could be bought or sold. In other words, they could be objects of legal relationships. This logic was the same that, in the beginning of the XX century, created the famous "separate but equal" rule, and which helped protect the apartheid practiced in different states of the South.

     In the reasoning of the court, the unborn is not a person, even though it is human. Thus, it could be killed, even during the third trimester, if it is vaguely justified by an unclear appeal to the health of the mother, as was admitted implicitly by the same Court, which allowed the cruel and bloody "partial birth abortion" [6].

     In sum, not all human beings are always regarded as equal. Some are not, because during their prenatal life they are not considered persons.

Abortion: a logical incongruity and a legal contradiction, but an accepted reality

     Strangely, we seem to have gone back in time and have divided the concepts of humanity and personhood or legal subjectivity. In fact, the theory of the "pre-embryo" implies accepting the humanity of the embryo, at least from the fourteenth day of pregnancy-because it attempts to sustain its "non-humanity" before that moment. It does not state that the unborn is not a human being, but that the pre-embryo is not human because not until the fourteenth day does it possess certain biological qualities.

     In applying the norm of article 6 of the World Declaration of Human Rights, mentioned above, to this reasoning, it is easy to conclude that the pro-abortion countries contradict the international legal ruling referring to human rights because they do not provide every human being with the protection required by their legal personhood.

     Every abortion method performed after the fourteenth day of pregnancy -which so far have been the usual practice-is contrary to the human rights recognized in the ordinances of current international law. Contrary to international rights, these "factual ways" or aberrant practices go against the most fundamental right, which is life. The States that tolerate these practices violate the World Declaration.[7] Regionally, for example, they violate the American Convention on Human Rights or the "Pact of San José de Costa Rica," which they promised to comply with, through "progressive measures of national and international nature" (introductory paragraph). The U.N. Declaration was passed in 1948, and even though its fiftieth anniversary was lavishly celebrated, since then some States (the United States, and many members of the European Union) have made legal decisions accepting the practice of abortion despite explicit prohibitions against it in 1948. More than inconsistency, this is hypocrisy.

The human embryo

     But today, in the great "health market," we are faced with a greater challenge: the production of human embryos for commercial purposes, not only for so-called "artificial fecundation" practices, but also for their use as raw materials for elaborating curative means for certain diseases. The health purpose is excellent; the economic end is highly respected and even commendable within a capitalist system based on free enterprise. The problem is the means.

     This converts the embryo into a means, a thing, an object of manipulation and legal relations. If embryos are raw materials, their commercialization in the health market logically follows, in the same way that blacks were bought and sold because they were not considered persons.

     It is time to reflect on the affirmation of international law that every human being is a person. In its initial stage of development (before the fourteenth day), is the embryo human?

     To begin with, men and women generate a human product without using any external material other than their own bodies. It is therefore a very special human "product" resulting exclusively,[8] directly and immediately from the creative potential of human biology. It is a human product which participates in human dignity. That is insufficient, however: it could be an extrinsic dignity similar to the one attributed, for instance, to human cells.

     The embryo enjoys a special dignity because, by itself, it is already human life. But one could object that evolving into human life is not the same as being human. Up to this point, the embryo can be entitled to a special, considerate, respectful, protected treatment, but is not the subject of rights. Therefore, all such respect could yield to a higher human interest such as the health of those who have already been born, and who are undoubtedly human.

     The problem is said to lie in the fact that the embryo, during its initial stage, does not enjoy individuality or identity because, being formed by multi-potent cells, one or more as yet unidentified human individuals could be in formation.

     But let us reason this out. The embryo (we refer to the so-called "pre-embryo") is a being. Under this expression -being-we mean the existing, living reality that is in potency to its own biological development, which is differentiated and autonomous: it has in itself its own evolutionary force. It has within itself what it needs to survive and "nourish" its own autonomous development. Additionally, and fundamentally, it develops on its own, without playing any "role" outside of its own being. A cell is not a being because it "functions" as part of a whole; its development forms part of the development of the whole in which it is inserted. The embryo is not part of any whole. It is not fundamental to the biological life of the mother. Thus, if we "produce" embryos in the laboratory, they lack "utility"-unless they are implanted in the uterus to continue the biological cycle which leads to birth. Or if they do not complete the gestational stage in the laboratory either, and they are not implanted eventually, they will be "discarded," "destroyed," or simply "killed," which are all synonymous terms.

     Therefore, the embryo, from the fertilization of the egg, differentiates itself from its generators. It is identifiable and individualized in relation to its generators and to any other embryo or living individual. It is a being, but of what species? Its genetic structure differentiates it from other kinds of beings. It is not a plant; it is an animal. It has the genetic structure of a vertebrate, a mammal, a human. Hence it cannot evolve into an orchid, a worm or an elephant. It evolves "humanly", as every other human has evolved and will evolve from its pre-natal stage.

     If it is an individual of the human species, it is a human being. Morphologically and organically, an individual human being is equal to other human newborns.[9] Genetically, it is not.

     But for some thinkers it is not an individual. This affirmation is relative; the embryo is individualized compared to other living beings, to its generators, and to other embryos. It is individualized in its entity, existence and identity, even though it can become many beings.

     I was not a sperm, or an egg, simply because I resulted from a determinate and precise combination of a spermatozoon and an ovum, for if the same spermatozoon had fertilized the ovum of another woman, I would not be today. I am the result of a precise substantial combination out of which came my own self, according to a specific and unique genetic conformation.

     I was an embryo, that embryo. Essentially, I am that embryo, as I am the eight-month old fetus, or the three-year-old child or the twenty-five-year-old youth. The identification is perfect.

     Of course, it may happen, though exceptionally, that the same embryo might be the embryo of John and of Peter. From that perspective, some state that the embryo is not an individual because it is susceptible to division. However, let us note that even in that hypothesis, the embryo equally enjoys an identity: John and Peter were and are that embryo (depending on whether one considers the embryo from a temporal perspective or as a substantial reality). Aren't the Siamese twins, who are united and sharing the same vital organs, human beings despite being united and having to be separated in order to survive even if producing the inevitable death of one of them? If the so-called "pre-embryo," in its evolution, does not multiply into two or more human beings, but remains only one, it was always that human being. Even if it multiplies or, in reality, develops sequentially,[10] it was always those human beings and those human beings were and are that embryo. Or- we are not certain-a specific first being generates a second one. In either case, the embryo is fully identified-it has its own identity-even though it is not relatively individualized. In any event, this is a problem that should be answered by metaphysics, for biologically the "pre-embryo" is a living being of a human genetic structure, of a human species and nature, and therefore a human being. He/she is an entity carrying human nature in him/herself, bearing the genetic code which individualizes him/her.

The legal response

     This is the foundation for a possible legal answer. The lawyer, the legislator and the judge cannot reach absolute conclusions on issues that are not of their specialty. In spite of that, they could give answers that are coherent and reasonable. If the law were indifferent to these answers, it would be reducing a being that belongs to the human race to the condition of a mere "thing" or "object." It would be an object especially and eventually protected, but such protection would be subordinated to higher end, and so, just relatively protected. How, for example, could we avoid speculating about the possibility of creating human beings from human embryos with the exclusive purpose of using their organs for transplants? This is the logic of the Roe case: no action on the embryo should be prohibited to the extent that there is an intention of satisfying a higher purpose than protecting that "something" which deserves more respect than an animal, an ecological system or a work of art.

     Nevertheless, the law cannot be indifferent to scientific facts-at least, the ones we have up till now-which necessarily lead us to affirm the humanity of the recently conceived. In this sense, the argument developed by the President of the Supreme Court of Justice of Argentina [11] is very interesting. It shows how law finds solid grounds in favor of recognizing the legal subjectivity of the embryo. The Civil Code of Argentina, in article 51, states that: "All entities that present characteristic signs of humanity, beyond qualitative or individual differences, are persons..." This legal principle, (stated almost a century and a half ago), follows a Roman tradition oriented towards an exclusively morphological validity which has significant meaning today. President Nazareno goes to the heart of the question when he says: "given that law is a practical idea that is nourished on reality, it is wise to refer to the sciences that study biological human reality, such as genetics, in order to establish which are the characteristic traits of humanity..." in the Civil Code. In accord with biology, the characteristic sign of humanity is the special conformation and sequence of deoxyribonucleic acid-DNA-belonging exclusively to the human race. It is the one that the embryo has from conception as well as the so-called "pre-embryo". "From that we can deduce" Nazareno says, "that human DNA or the human genome identifies a person as belonging to the human race and therefore characterizes humanity in terms of the law." From a biological point of view, and prescinding from spiritual reality- the "possession" of human DNA allows us to define a human being as such, beyond its individual qualities or differences, that is to say, beyond specific morphological, organic characteristics, efficient reasoning, nervous system, cellular evolution, and length of gestation, among others.

     Until the contrary is scientifically demonstrated, law can and must affirm that there is a typically and exclusively human DNA, and that every individual who has it belongs to the human race and is a human being. And if he is a human being, he is a person, and is a legal subject. Moreover, if he is a person, then he is entitled to all the fundamental rights that other persons enjoy. Among these, the first and absolute right is the right to life and to physical integrity.[12]

The rights of the child (Nasciturus)

     Besides the already cited article 4 of the American Convention on Human Rights which acknowledges the right to life "from the moment of conception," there is a specific convention in international human rights law designed to protect children: the Convention on the Rights of the Child (United Nations General Assembly, November 20, 1989). This convention specifically defines the issue under discussion.

     Article one of the Convention establishes that "a child means every human being below the age of eighteen years". The Preamble-which is the document designed to explain the will of the legislator, and is therefore the first element of an authentic interpretation of the norm-reiterates what had already been said in the previous Declaration of the Rights of the Child: "the child, by reason of his physical and mental immaturity, needs special protection and care, including appropriate legal protection, before as well as after birth" (my emphasis).

     Consequently, the Convention recognizes the humanity of the child in its pre-natal state, [13] without any distinction of stages or biological evolution. This is a ruling principle of international law which the signatory States are obliged to respect-sanctioning the "appropriate legal protection" of the unborn child-under the supervision of the "Committee on the Rights of the Child" created by article 43 and following of the Convention.

     The Convention creates the image of the "child" as a subject with special rights, "without discrimination of any kind, independently of all other conditions of the child" (art. 2.1). For this child, the States "undertake to ensure... such protection and care as is necessary for his or her well-being..." (art. 3.2). They "recognize that every child has an inherent right to life", and commit themselves to ensure "...to the maximum extent possible the survival and development of the child" (art. 6). The child has the right to "know his or her parents" and "preserve his or her identity" (art. 7 and 8). The States should adopt "all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental abuse" (art. 19). Fundamentally, the Convention establishes that in every public or private action related to children, "the best interests of the child shall be the primary consideration" (art. 3.1).

     All these articles are perfectly applicable to the "child-subject of rights" in his pre-natal state, as mentioned explicitly in the Preamble of the Convention.

     The legal subjectivity of the unborn at every stage of his biological development is thus a commitment taken by States that the United Nations should enforce.

ENDNOTES

[1] We will use the term "embryo", which is more comprehensive. The question is, in itself, a nominal one because the question of the qualification is not related to the problem of the quality of the subject and his/her rights from the moment of conception by the bonding of the female and masculine gametes. Anyway, the expression "pre-embryo" lacks a scientific basis, as shown by A. SERRA, in "Lo stato biologico dell'embrione umano. Quando comincia ll'‘essere umano'?", in the combined publication of the PONTIFICAL ACADEMY FOR LIFE, commento interdisciplinare all'"Evangelium vitae", Vatican 1997.

[2] This is the ruling of the Supreme Court of the United States of America (410.US. 113) that in 1973 declared the unconstitutionality of the state laws prohibiting abortion. It established the doctrine of the "three trimesters": during the first, abortion is completely unrestricted; during the second one, it could suffer certain restrictions for the benefit of the mother's health; during the third, it could be forbidden, unless it is required for the benefit of the mother's health.

[3] This term, from the Roman legal tradition, encompasses all the pre-natal evolution of the human being, from conception to birth.

[4] Some incorrectly formulated scientifically, as the one regarding "to one's own body", since the "unborn" is distinct from its mother. Therefore, the woman who voluntarily has an abortion is deciding about the body of another and not her own.

[5] 60, US, 393, ruling of the year 1857.

[6] Steinberg, Attorney General of Nebraska v. Carhart, 530. U.S. 914, ruling dated April 25, 2000.

[7] The first paragraph of the Preamble of the World Declaration states that "...liberty, justice and peace in the world based on the acknowledgement of the intrinsic dignity and the equal rights of all the members of the human family". While abortion is tolerated, there will be no justice in the world. Article 3 of this Declaration states that "every individual has the right to live...". Article 4.1 of the American Convention on Human Rights states that "every person is entitled to the rights that protect their lives. This right is protected by law, and in general, from the very moment of conception. Nobody can be deprived of his or her life arbitrarily". This is consistent with article 6.1 of the International Pact of Civil and Political Rights: "The right to life is inherent to the human person. This right is protected by law. Nobody should be deprived arbitrarily of the right to live."

[8] This does not exclude that laboratories could, hypothetically, produce human embryos from cells submitted to special treatment, but even in this case, the creative potential will always come exclusively from the human cell.

[9] Neither is the embryo, immediately after the fourteenth day after conception. However, it seems that even in this case it is not possible to scientifically deny its humanity.

[10] As explained by SERRA, "Lo stato biologico dell'embrione umano", 593-594, when analyzing the "mechanisms which lead to the formation of mono-zygotic twins [...] it could be certainly affirmed that, in any case, there is a ‘first' from which the second originates, or that the first system has originated the second system. On the other hand, it is inaccurate to state that the first system is transformed into two or more systems contained within itself in a confused state. Additionally, while the second system begins its own individual ontological existence the moment it begins to develop-which could happen before its physical separation from the first-it continues uninterruptedly its development keeping its own biological and ontological identity."

[11] This is about Julio Nazareno's vote in the case Tanus, Silvia vs. The Government of the City of Buenos Aires ruling from January 11, 2001.

[12] That is why certain thinkers are mistaken. Ronald Dworkin, for instance, sees in the unborn, not a human being, but an object of protection, even the basis for an ethical imperative, but one which cannot be imposed on those who do not think the same way. This is also why abortion, although bad in itself, cannot and should not be forbidden (Life's Dominion, 1993). A second example is zoologist Stephen Jay Gould. He absurdly sustains that we cannot grant the "'status' of human life to a group of cells set on a dish, produced by in vitro fertilization, and explicitly destined to be disposed of by the free decision of the man and woman who contributed with their components" ("What Only the Embryo Knows", The New York Times, August 27, 2001). The scientist fails to point out that this "bunch of cells" has human DNA, and would at least demand not to be placed on a dish, nor to have debates about the ethical considerations of producing them in laboratories, and to prohibit their "storage" and "disposal", even against the twisted will of their generators.

[13] As proof that the quoted is an authentic interpretation of the Convention-which results from the Preamble-it is worth mentioning that the Republic of Argentina adhered to it with "reservations and comments" including the following: "In relation to Article 1 of the Convention on the Declaration of the Rights of the Child, the Republic of Argentina declares that it should be interpreted that a child is any human being from the moment of the conception until he is 18 years old". Now, then, Article 51 of the Convention sets that the reservations are to be communicated to all the member States, and that "a reservation incompatible with the object and purpose of the present Convention shall not be permitted" (Paragraph 2). The Argentinean proposal was not rejected by any of the signing States. This shows that it is compatible with the object and purpose of the Convention: the total protection of the child in the widest possible sense.