06/28/2012 11:01 am ET Updated Aug 28, 2012

Fetal Personhood: Why Stop There?

Senator Rand Paul (R-KY), that scion of small government, wants the government to decide when a woman can choose her own reproductive fate. Paul has offered an amendment (to an unrelated flood insurance bill) that would give full legal protection to a fetus from the moment of fertilization. This has obvious implications for the legality of any abortions as well as stem cell research and many forms of fertility treatments. The measure would challenge the use of mifepristone (RU-486), the so called "morning after" pill. Even the use of an IUD could be considered illegal since it prevents a fertilized egg (now a person) from implanting in the uterine wall. IUDs are the world's most widely used contraceptive so this is not a trivial concern.

But if Senator Rand wants to travel down this road, he must go much farther. His idea is not nearly radical enough. He has only arbitrarily selected fertilization as the magic moment when life begins, and he has chosen badly. Using Rand's own logic, we actually need to reach further back into the cycle of life to define personhood. We should declare, and have the government enforce the idea, that life begins when the testes produce a sperm and ovaries produce an egg. Masturbation and ovulation should be declared acts of murder because every sperm and every egg is a person. We will need to build more jails.

Perhaps unwittingly, Woody Allen was an early proponent of the idea gametes deserve personhood. In his 1972 movie, Everything You Always Wanted to Know About Sex, But Were Afraid to Ask, Allen dressed up like that ubiquitous male issuance, a good visualization of my theory that a sperm is a person.

Paul's idea about fertilization and mine about eggs and sperm come down to the concept of potential. Even Paul would say that an egg just fertilized is not a fully formed human being able to function independent of the mother. No, he is saying that the fertilized egg has the potential to be human, and therefore given that potential should be treated with all the rights of a person. Well, a sperm has the potential to be a human being too; it just needs to fertilize an egg; just one step earlier in the process of development. Since I am moving closer to origin, my claim should take precedent. A fertilized egg has no special status compared to an egg not fertilized. A fertilized egg has a long and uncertain journey to the uterus, and once there has only long odds on a successful attachment. Fertilization is no guarantee of success, far from it.

What Rand ignores is the fact that the majority of fertilized eggs are naturally aborted. Understand this: as many of 75 percent of all fertilized eggs fail to implant in the uterus. Fatal genetic abnormalities, hormonal imbalances, a uterus incapable of receiving the embryo, and a multitude of other factors prevent the majority of fertilized eggs from implanting and growing in a nurturing uterus. So what does Rand say about these fertilized eggs that in fact never had even the potential to become human?

So both an egg alone and one fertilized have the potential to become human given the right set of circumstances; since both have the potential to be human, both should be granted personhood. The moment of fertilization is nothing but one action (and usually an unsuccessful one) in a series of millions that take us from a single cell to an independently living being. Granting that moment special status is completely arbitrary and meaningless biologically.

One could just as easily, and less arbitrarily, declare that life begins at the moment when a fetus could live independently outside the womb. In fact this threshold is supported by solid biological reasoning. Without lungs, for example, life outside the womb is impossible. Incredible advances in medical technology have not extended fetal survival much before 24 weeks for good reason; a human fetus is simply not viable outside the womb much before that time and certainly not before 20 weeks. A fetus without lungs has potential to become human, sure, but so does a fertilized egg or an egg about to be fertilized, or an egg with the potential to be fertilized. So does a sperm with any potential to meet up with an egg. All really could be become human, all have the true potential to become human, given the right set of circumstances. Why choose fertilization as the magic moment?

So let's go back one more step in the biological chain of events and boldly declare sperm and eggs as persons. Ridiculous? Not one bit more than declaring a fertilized egg as a person. Both declarations are made arbitrarily in the absence of any basis in biology. So gird your loins -- you have much to protect.