Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktCapato v. Commissioner was decided in favor of the twins in the Third Circuit and the Supremes have granted Certiorari.
This is again a case where science may be outrunning the law as written. Here is what happened: Mr. Capato was dying of cancer. He and the Mrs. preserved his seed for later use. He died. She then conceived, 18 months after his death, by IVF, twins; his biological children, no doubt.
On behalf of the twins, Mrs. C. filed for SS survivors’ bennies.
The claim was administratively rejected, then rejected by a USDC.
The 3d Circuit reversed and remanded for a fact finding.
This is a statutory, not a constitutional, case. I believe the Supremes can reverse and render the Circuit, from my reading of the statute, and I am dubious as to the relevancy of the case law the Circuit cited.
The relevant part of the statute as quoted by the Circuit:
…the child (a) must have filed an application for benefits, (b) must be unmarried and less than eighteen years old (or an elementary or secondary school student under nineteen), and (c) must have been dependent upon the deceased individual at the time of his or her death. Id. §§ 402(d)(1)(A)-(C). [at p. 6].
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The Circuit remanded to the District Court for a fact finding about dependency:
…are the undisputed biological children of a deceased wage earner and his widow children, within the meaning of the Act? The answer is a resounding ―Yes.‖ Accordingly, we will vacate the order of the District Court in part and remand for a determination of whether, as of the date of Mr. Capato‘s death, his children were dependent or deemed dependent on him, the final requisite of the Act remaining to be satisfied.6
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HOW can a fact finder deem the children conceived 18 mos. after his death to be dependent upon him at the time of his death, when they did not exist in any sense of the word? Seems to me these twins are cut off as a matter of law.
This Court did seem to claim that these children were protected under a “liberal construction” of the law, and here that is not a political statement but a reference to a statute that is supposed to be interpreted liberally in favor of the beneficiary, in its own terms. I quote:
The purpose of federal child insurance benefits is not to provide general welfare benefits, but to replace the support that the child would have received from his father had the father not died. Jones ex rel. Jones v. Chater, 101 F.3d 509, 514 (7th Cir. 1996) (citing Mathews v. Lucas, 427 U.S. 495, 507-08 (1976)); see also Adams v. Weinberger, 521 F.2d 656, 659 (2d Cir. 1975) (the purpose of the Act is to provide support to children who have lost actual‖or anticipated‖ support). In general, the [Act] is to be accorded a liberal application in consonance with its remedial and humanitarian aims. Eisenhauer v. Mathews, 535 F.2d 681, 686 (2d Cir. 1976).
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To me, either they are protected under this liberal interpretation of the law as a matter of law, or they are not, as a matter of law. I think they are not, but most important from my view is I do not think that there could be any relevant facts that bear on the decision. It must be a matter of law, IMHO.
Ashot? QB? Any thoughts? If the Supremes took this one, they must have something to say.
Filed under: Uncategorized |
All Things in Moderation 
For me, it's an easy "no benefits."
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I gotta agree with Mr. Wingnut. There's just a practical problem, long term, with allowing folks to register for survivors benefits for children born well after the death of the beneficiary. Even if you allowed it, you would have to eventually cut it off. Would an embryo from parents frozen indefinitely and successfully implanted in a child or grandchild be entitled to survivors benefits from parents long dead? The system was not designed to be paying survivors benefits to children 50 years past death. I realize that's not the case here, I'm just thinking slippery slope.
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As a scientist–and not a lawyer–I say no benefits.It strikes me as going even farther than Mississippi's recent ballot issue and granting personhood to a mere idea, not even a gleam in the father's eye.
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No benefits. Could a child conceived from a sperm donor claim a part of the estate?BB
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Another non-lawyer vote here: No benefits.But I would assume they could claim a part of the estate, depending on the circumstances. They would be "issue" even if not "dependent" at the time of parent's death.Michi, I see the brined potatoes recipe, and thanks. I will try it even though it will wreak havoc with my attempt to keep sodium consumption below 1500mg/day. 🙂
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Mark:As a non-lawyer, my only observation is this:The mere fact that this is a question that has been taken seriously by the courts demonstrates how utterly absurd our cultural and legal system has become.
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I think I would allow the benefits if the conception had occurred during Daddy's life.I like KW's analogy: what is the difference between conception 18 mos later and 18 years later?
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I agree with everyone else, no benefits. It actually seems like a pretty silly idea to me. If she were pregnant at the time of his death okay, but to wait so many months and "decide" to have his children, no way. She's on her own and should have known that. It's a great sentiment to carry on the family genes but that was her decision and should have been made in light of the fact that she would be responsible financially.
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Well jeeze, we all agree, now what?
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I don't think benefits should be given even if the father died after conception but before death. After all, given our current law, it was still the mother's choice to have the kids after his death.
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I still want to hear from Ashot and QB, who will surely agree with all of us on the denial of benefits, about how there could be a "fact issue" to decide. I am worried that I am being blind to something in that regard. If I were arguing for the government in this case I would be sputtering about the illogic, so I am afraid there is a quirk of Fed Procedure I have long forgotten that I want one of my colleagues to double check.There is a courtesy involved in letting a trial judge rule on a legal issue he did not reach, which he did not here, but that used to involve a remand with an order to enter a trial judgment in accord with the appellate opinion. Here that would read something like this: "the trial court ruled incorrectly that the twins were not children of the deceased, and as a result did not reach the dispositive issue, which is that at the time of Mr. C.'s death there were no twins in the oven or on the ground for him to support. The fact that he made provision for them in the future does not in any way mean that the twins conceived after his death could have anticipated his support.The trial court is ordered to reform his judgment in favor of the government in accord with this opinion."That cleans up the record as to why the twins are denied coverage. Remanding to determine the facts seems myopic.
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Mark, a short explanation to non-attorneys on the import of question of fact v. question of law might be helpful.
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Scott, that denies any possibility that the father would survive, which I do not think could be done as a matter of law. If Mr. C. knocked up Mrs. C, before passing on, the kids are covered, so it is difficult for me to distinguish the in vitro fertilized twins in that scenario. In either case, the couple could be either hoping for life or scamming for death, and the former is always more likely. If it were made subject of evidenciary production it would be a ridiculously expensive exercise, in any case.
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If the facts are agreed then the only questions are of law, and are for the judge. If there is a conflict of testimony so that the facts must be determined, either party has the right to have a jury determine the facts, based on the weight and credibility of the evidence.Okiegirl, does that help, or should I list common examples?
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Mark:I'm not sure I understand. The hypothetical I propose assumes that the father died after conception but before birth. So yes, the assumption preempts the possibility that the father survived.My point is that, from a practical standpoint, given our current state of law, once the father died, the mother had a choice that is little different to the choice she faced in the actual case regarding IVF. Either have the kids in full knowledge that the father is not around to support them, or not have them, ie terminate the pregnancy. We have been told, over and over again that this decision is a matter of the women's choice. So be it. And as a matter of law, it seems to me that the fetus cannot be said to be a dependent until it is born. Certainly I cannot claim my unborn baby on my tax return as a dependent. And so, based on the part of the law you quoted, the kids would not qualify, as they would not have been dependents at the time of his death, even if conceived at the time of his death.
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Thanks, Mark. That works for me, but then I worked for many years as a litigation paralegal if not as an attorney. My request was more from assuming others might have questions about your 6:03 comment, but I should let them speak for themselves if that is the case. 🙂
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Third time this month, Scott!Are you sure you aren't moving toward the light and away from the dark side??? 🙂
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Mich:What exactly are you agreeing with? Certainly not everything I've said on this thread. That would be way too much to hope for.
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Michi, my read is that Scott is arguing that the mother should be denied benefits because she has the choice of aborting. So I assume he extends that argument to a natural pregnancy as well?
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'Goose, and Scott, suppose dad impregnated mom and quite accidentally got hit by a bus.You would deny survivors' benefits to the kid because mom did not abort?That is a perspective I had not considered. Neither would any court, btw.
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So scott you're saying the fact that she became pregnant through IVF, knowing that her husband's days may be numbered but not knowing whether he would survive the birth of the baby, precludes her children from survivor benefits? What if she became pregnant the old fashioned way knowing he had cancer?
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Scott, you do have an affinity for stirring things up!
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LMS, Scott already made that clear, I think. He believes that it is logical to say a fetus has no anticipatory right because dad could not be ordered to support the fetus [which is not quite correct, but for the sake of argument, we can let that slide].
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markI think he's saying that deciding to have a child with a sick husband by choice and the husband dies before birth and the mother decided to carry the child to term, the child should be denied survivor benefits. I'm just seeking clarification.
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okie:Yes, the method of conception is irrelevant. As a matter of law (at least that part that Mark posted) the kids were not dependents at the time of the father's death, and hence do not qualify. And as a matter of simple consistency, there is no difference between the choice to birth the kids 18 months after the father's death having been conceived via IVF and the choice to birth the kids, say, 6 months after his death having been conceived naturally. The choice is the exact same, and nth are made in full knowledge that the father is not there to support them.
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okie:Scott, you do have an affinity for stirring things up!I try. Let's make this a 200 comment post.
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lol, Scott. Okay, I'll contribute.BTW, I do not know if "dependent" has the same meaning in this context as it does in tax code. Anybody know?
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lms:Hopefully I have made it clear now. The method of conception is irrelevant. Indeed, the fact of conception is irrelevant. What matters is the choice to have the kids after already knowing that there will be no father to support them.
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I agree with Scott that it's the mother's choice to carry the twins to term, and the twins don't get benefits because Dad was long gone by the time they were implanted in Mom. If she'd gotten pregnant while Dad was still alive, that would be a whole 'nother issue, but as it is she decided to become a single mom when she decided to undergo IVF nine months after her husband died.I also agree with Scott that a fetus is not a dependent. I don't agree that becoming pregnant nine months after the the father's death ("birth the kids 18 months after") is the same as having conceived them while he was alive. There is a difference here, Scott, and it doesn't matter to me whether or not they knew he had a terminal illness. He could have been terminally ill and then hit by a bus; the bus killed him rather than his illness.
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scottHave you ever know anyone who died from cancer who beat the odds and lived a little longer than everyone thought? Essentially, you're saying that women who have children with an ill husband should not count on survivor benefits if their husband dies pre-birth. I doubt the law says that. And if the method of impregnation doesn't matter how would you prove it was a choice anyway.
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Mark: He believes that it is logical to say a fetus has no anticipatory right…Actually I think it is logical to say that, if a fetus has no right to life, the most fundamental and basic right from which all other rights spring, it can't possibly be sensibly said to have any other rights.
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Scott–At what point would you give a fetus the right to life?
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scottThat's what I figured you were getting at. Sorry, not going there tonight. You guys have fun though, I'm tired and actually do have a sick husband, luckily it's just a cold and I'm not pregnant anyway.
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I wondered why the Supremes agreed to hear this case and also wondered if it would end up being tied to abortion somehow. Perhaps Scott has come up with that answer or something close to it.
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lms:Essentially, you're saying that women who have children with an ill husband should not count on survivor benefits if their husband dies pre-birthI am saying that a woman who chooses to have children despite knowing that there is no father around to support them should not count on the government to support the children for her. If she cannot support them herself, she can choose not to have them.
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Much of the predisposition of the law here is based on the history that in estate planning descriptions children, issue, and descendants include the as yet unborn fetus, who takes as an heir if the class of issue, or children, or descendants are named in the will of the deceased daddy.The fetus does not take if it is never born.
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Mich:At what point would you give a fetus the right to life?Personally, I cannot logically justify any point after conception.
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I am saying that a woman who chooses to have children despite knowing that there is no father around to support them should not count on the government to support the children for her.I actually agree with that, also, although I'm not advocating that she have an abortion simply because the father has died. It seems to me that she might be eligible for survivor benefits (never having to have filed for these, I don't know when/how a widow would become eligible) while the children might not be. As far as determining whether or not the children are eligible I'd want to know what developmental stage they're in; if they're one-month-old embryos that's a very different decision than a one-day-before-birth fetus. Not to mention a slippery slope. . .
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The Supremes could say that a fetus had to be viable outside the womb at the time of daddy's death to square it with Roe v.Wade, I guess.That would not shock me, actually.
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I cannot logically justify any point after conception.Did you know that conception takes place several days before implantation? I can justify several different points after conception, depending on how strictly you want to define life and demand Society's ongoing medical support for the child after it is delivered.I'm trying to keep it out of the realm of the fabulously wealthy who can afford all of the healthcare they'd ever need for their child if it were born prematurely, which (viability if naturally born at a certain stage) is the basis for a lot of the arguments about when an abortion becomes illegal.
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Mark just made my point for me. . . corked!
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Mark:The Supremes could say that a fetus had to be viable outside the womb at the time of daddy's death to square it with Roe v.Wade, I guess.Perhaps from a legal wording point of view, that would do it. But given the practical reality of abortion law in the US, ie the essential impossibility of designing any law acceptable to Roe that actually does outlaw abortion even post-viability, I think the basic contradiction would remain.
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Mich:Did you know that conception takes place several days before implantation?Sure.I can justify several different points after conception, depending on how strictly you want to define life…Well, sure. One can always square a circle if the definitions of a square and a circle are malleable. But if you want to define life as something after conception, you are left with the problem of explaining just what it is that gets created at conception, if not life.and demand Society's ongoing medical support for the child after it is delivered.There is a difference between the point at which rights inhere in humans and the lengths to which society is willing to go to protect that right. We may, for practical reasons, be unwilling or unable to take the necessary steps to protect the right to life of a given person. That doesn't mean the right is non-existent. it just means it isn't being protected.
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But if you want to define life as something after conception, you are left with the problem of explaining just what it is that gets created at conception, if not life.From a strictly scientific standpoint, what happens at conception is the forming of a genome, not a life. If you want to define a double strand of DNA–even one which is a complete genome–as a life then I have a whole refrigerator full of life. . . that has been extracted from blood. If a double-strand of DNA is life, then we destroy it every single day just in courts of law when we test DNA to determine whether or not a criminal was at the scene of a crime.If a life is a double strand of DNA, then every time a zygote is washed out of the body before implantation occurs, a life has been destroyed.That's not life, that's simply a macromolecule.
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Mich:From a strictly scientific standpoint, what happens at conception is the forming of a genome, not a life.Surely the two are not mutually exclusive. In fact, I would imagine that the formation of the latter would necessarily be characterized by, among other things, the formation of the former.Why are those double strands of DNA in your fridge not behaving in the same way as that which gets created upon conception? In other words, why does the genome created at conception eventually develop into what even you, with whatever definition you use, would call a life while those in your fridge do not?If a life is a double strand of DNA, then every time a zygote is washed out of the body before implantation occurs, a life has been destroyed.Every human life will end at some point, and most of them will end as the result of some natural cause. Some end a few days after conception, some end 90 years after conception, and some end at all points in between. If you would characterize all of those as "destroyed" lives, then yes, every time a zygote is washed out of the body before implantation, a life is "destroyed".
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I think that they are mutually exclusive, in that a genome does not equate a life. A life, to me, implies a soul and higher cognition. Yes, a genome is required to create life, but life is not required for a genome to exist.Why aren't my refrigerator genomes behaving as a life? Because they aren't advancing. They aren't being transcribed into RNA and translated into protein and creating further structures and more complex macromolecules, organelles, cells, tissues, etc., etc.. DNA qua DNA is a pretty simple structure.
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Mich:A life, to me, implies a soul and higher cognition.I thought we were talking science. As far as I am aware, the existence of souls is not a scientific matter.Yes, a genome is required to create life, but life is not required for a genome to exist.Exactly. So they are decidedly not mutually exclusive. Far from the creation of a genome excluding the possibility of the creation of life, the creation of a life requires the creation of a genome.Because they aren't advancing. They aren't being transcribed into RNA and translated into protein and creating further structures and more complex macromolecules, organelles, cells, tissues, etc., etc.Yes, but why aren't they doing these things, when the genomes at the point of conception do? There must be some difference between the two, no?
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A uterus.
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Mich:A uterus.So if you simply took the DNA that you have extracted from blood, removed it from the fridge and injected it into a uterus, it would begin to, as you said in your previous, "act like a life"?BTW, I think through your wording you have essentially conceded the point. When I asked you:"In other words, why does the genome created at conception eventually develop into what even you, with whatever definition you use, would call a life while those in your fridge do not?"…you interpreted this as:"Why aren't my refrigerator genomes behaving as a life?"The obvious implication of this re-framing of my question is that the genome created at conception does indeed "behave as a life". I'd suggest that it "behaves as a life" precisely because it is a life.
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Scott, you know and I know that we're both–to some extent–arguing reductio ad absurdum.A genome is not life. Life requires more than just a macromolecule. . . it is the result of much more than the simple fusion of a sperm and an egg.Yes, a soul is not a scientific, quantifiable entity. But that's kind of the point of "life". I can give you points in developmental time that I think that people could argue "life begins here". But conception is not it, not in any really meaningful way, even given the ineffableness of defining a soul, or life, or meaningful.
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And I, my friend, am going to sign off for the night. I'm sure this concept will come up a couple more times. :-)Mark, good post–you generated an interesting discussion, even if we haven't (yet) reached Scott's goal of 200 comments.Hasta manana, amigos!
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Mich:Scott, you know and I know that we're both–to some extent–arguing reductio ad absurdum.Actually, I am not aware that either of us are doing that.A genome is not life.I understand. I am not saying that, in and of itself, it is. But it seems undeniable to me that when fusion of a sperm and an egg occurs, something new and unique is created, and while that something includes and begins with the creation of a genome, it is not limited to and does not end with a genome. That something has a self-generated process that, when uninterrupted, eventually results in the birth of a human being. That something does not exist in the blood-extracted genomes in your fridge, which is why those genomes do not "behave as a life" and will not do so even if injected into a uterus. The name for that something, as implied even by your own words, is obvious: life. If that something isn't life, then what is it?
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I'm with FB @ 5:08. But, wait; what's this about brined potatoes?
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"And as a matter of simple consistency, there is no difference between the choice to birth the kids 18 months after the father's death having been conceived via IVF and the choice to birth the kids, say, 6 months after his death having been conceived naturally. The choice is the exact same, and nth are made in full knowledge that the father is not there to support them."The choice is not exactly the same. You're equating the choice of whether to have an abortion upon the father's death with the choice to become pregnant after the father's death. So any woman who has a partner's frozen sperm is making an abortion decision when she decides whether to use the sperm or toss it?
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"He believes that it is logical to say a fetus has no anticipatory right…Actually I think it is logical to say that, if a fetus has no right to life, the most fundamental and basic right from which all other rights spring, it can't possibly be sensibly said to have any other rights."It is not the fetus, it is the mother. If the mother is dependent on the father at the time of the father's death, the benefits should extend to any unborn children she is carrying. I think the relevant point is the one Fairlington Blade raised some time ago: the issue of donors. Do the offspring from anonymous donors deserve survivors benefits? No. The mother who's eggs are being fertilized is making a very deliberate choice to be a parent without the participation of the donor – financial or otherwise. The woman in this case made the same choice. No survivor benefits.
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bsimon's last paragraph summarized what I'd been trying to say about this specific case beautifully!The name for that [fusion of a sperm and an egg], as implied even by your own words, is obvious: life. If that something isn't life, then what is it?I'd classify it as "potential". Using that word in the same way it's used for potential vs kinetic energy.I wish Mike were around to weigh in. As a virologist, I'd like to hear his perspective on life at this (the macromolecular) level.(bsimon–brined potatoes. Recipe is in last night's Bits & Pieces thread. If it doesn't jump out at you let me know and I'll either drop it into another thread or e-mail it to you. Yummy!!!)
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bsimon:The choice is not exactly the same.I think it is. The choice is whether or not to have a child with the knowledge that there is no father to provide financial support. The means of effecting that choice are different, to be sure. But the choice itself is exactly the same.So any woman who has a partner's frozen sperm is making an abortion decision when she decides whether to use the sperm or toss it? No. I'm not sure how that follows from my logic at all.It is not the fetus, it is the mother. If the mother is dependent on the father at the time of the father's death, the benefits should extend to any unborn children she is carrying.The question of whether the mother is entitled to survivor's benefits is not an issue at all. The sole question is whether a fetus is entitled to survivor's benefits. As a matter of law, according to the language posted by Mark, it seems clear it to me is not. A fetus is not a "dependent" at the time of the father's death. As a matter of justice (assuming the same standard that considers abortion to be just), it seems equally clear that it is not entitled to such benefits. If the fetus does not have a life worthy of protection from the state, how can it be said to have a right to financial benefits worthy of protection? Makes no sense at all.If you are saying that a pregnant survivor has a right to additional benefits beyond those owed to a non-pregnant survivor, the question remains…why? The pregnant survivor still retains the legal choice not to burden herself with having to support the unborn baby. If she freely chooses to take on those burdens, why should the state bear them for her?I think the relevant point is the one Fairlington Blade raised some time ago…I agree that FB raises an interesting question. But it is wholly unrelated to the one we are discussing, so not more relevant, just different.
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Mich:I'd classify it as "potential". Using that word in the same way it's used for potential vs kinetic energy.The conparison doesn't make sense to me at all. Potential energy is a measure of energy for some object relative to a "natural" state that the object is otherwise in. The potential energy of a rock rolled to the top of a hill is measured relative to the "natural" state of the rock at the bottom of the hill.I don't understand how this can be seen as an analogue to the thing that comes into existence at the point of conception. What is the natural state against which this "potential" is being measured? It seems to me that, to the extent that the anology can be sensible at all, the only way to view the analogue is that the unfertilized egg and sperm are "potential" life equivalent to the potential energy of a rock rolled to the top of a hill. Conception represents the push which sends the rock down the hill. Everything that happens after conception up until the point of death is the equivalent of the kinetic energy being spent as it rolls down the hill. Death represents the point at which all of the kinetic energy has been spent, and the "thing" returns to its "natural" state, ie non-existence.
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bsimon:My sentence above which reads:"If the fetus does not have a life worthy of protection from the state, how can it be said to have a right to financial benefits worthy of protection? Makes no sense at all."…should read (with addtion in bold):"If the fetus does not have a right to life worthy of protection from the state, how can it be said to have a right to financial benefits worthy of protection? Makes no sense at all.
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The sole question is whether a fetus is entitled to survivor's benefits.In reality, a fetus is not entitled to survivor's benefits, a child, once born, is.
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lms:…a child, once born, is.Even if it was born after the death of the father? Why? You have already agreed that a child conceived after the father's death is not entitled to benefits. The only difference between that instance and the one we are discussing is the point of conception. Do you think the point of conception is relevant? If so, why?
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Hi all,My, this turned into an entertaining thread. The husband of a friend of mine was diagnosed with pancreatic cancer shortly after they were married. Chemo was likely to sterilize him, so some of his sperm were frozen. They chose to try in vitro, which successfully resulted in a twin pregnancy. He died four years ago when the twins were about one year old. They receive survivors benefits. I would find it hard to accept a legal decision that would deny them such benefits if he died while his wife was pregnant. I know that the law can sometimes be an ass, but that seems a particularly asinine approach.Now, what happens after the person dies. At that point, it is reasonable to me that the survivor's link is broken. At that point, it is a vial of viable sperm.I recognize there will be some arbitrariness to this. Say, a couple is planning on using IVF, but the potential father is in a serious car crash. The mother quickly has IVF done before he dies. Or, he dies while they are undergoing IVF. I can see reasons for drawing some bright legal lines.I think the estimates are that fewer than half of fertilized eggs result in a successful pregnancy, so don't go with fertilization = a human life with all the legal rights pertaining. I'm willing to go with life as one starts with a mass of cells that is growing. Then again, I've got a veritable ecosystem in my gut that is life, just not ever going to be human life.BB
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Do you think the point of conception is relevant? If so, why?Yes, because whether the father is ill or not there is still the expectation or at least potential that he will be there to provide for his child. If the father is deceased already at point of conception, there is no expectation of support.
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FB:I would find it hard to accept a legal decision that would deny them such benefits if he died while his wife was pregnant.Why? At the point of death, the wife would still have had the ability to consider the financial burdens of having the children, and choose not to have them if she couldn't carry that burden. It is one thing to say that the state should help support someone who, through unpredictable circumstances finds themselves without the finaincial support that they were expecting. It is quite another to say that the state should carry the financial burden for a conscious choice, made with all of the relevant information already known, to take on those financial burdens.
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lms:Yes, because whether the father is ill or not there is still the expectation or at least potential that he will be there to provide for his child.Sure, but the choice to bear a child is not irrevocably made at the point of conception, as we have been told time and time again. And so it is not clear to me why the "expectations" at the point of conception are relevant. When the father dies, the wife still has a choice: bear the child with full knowledge of the financial burden she is taking on, or don't bear the child if the financial burden cannot be met by her.The question to you is, why are the "expectations" at the point of conception determinant, rather than "expectations" at the time of death, a point at which the choice to bear the child still exists?
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This whole ball of wax makes the case for individual accounts with survivor benefits.
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If the fetus does not have a right to life worthy of protection from the state, how can it be said to have a right to financial benefits worthy of protection? Makes no sense at all.I'm not sure the first portion of that question is accurate. It's beena while since I've read or thought about Roe v. Wade and Casey v. Planned Parenthood, but the argument is not that the state has no interest in protecting the fetus, it's that prior to viability that state interest (whatever it may be) is not compelling enough to allow for a restriction on the mother's Constitutional right to privacy…in this case an abortion. To put it more bluntly, whatever interest a state has in the rights a fetus has prior to the point of viability do not rise to the level of a compelling state interest. Practically I am not sure there is a difference between the state having not interest and having an interest, but one that does not rise to the requesite compelling state interest level. It seems to me that the simple way out of this for a court is to say, whether or not the fetus is a child as defined under the statute, in this case the child was not dependent on the father at the time of death. Now in a hypothetical where the father dies while the child is a fetus, as opposed to frozen sperm, I would have to look to see how courts have defined "dependent". It would not surprise me if courts have been pretty liberal in interpreting that phrase. Here's another hypothetical: So your Dad is a deadbeat Dad that left the child's mom before birth and has never provided a single penny in child support. He dies before the child turns 18. Was the child dependent on the father? Is the child entitled to benefits?
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scottAs far as I know we've never forced women to choose between life of their unborn child or poverty before but I guess there's always that potential.
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lms:As far as I know we've never forced women to choose between life of their unborn child or poverty before but I guess there's always that potential.Who is "forcing" such a choice on her? Perhaps it might be said that circumstances have "forced" such a choice upon her, but that is far, far different from saying that "we" have done so.BTW, as an aside, I am very glad to hear you use the phrase "life of her unborn child".
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"The choice is whether or not to have a child with the knowledge that there is no father to provide financial support. The means of effecting that choice are different, to be sure. But the choice itself is exactly the same."It is not the same. In the case of the mother being pregnant when the father dies, that choice was already made. You're saying that revisiting that choice is the same as choosing to start the process alone. They aren't at all the same.
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"The sole question is whether a fetus is entitled to survivor's benefits."In the case at hand, there was no fetus at time of death. Ergo, no survivors benefits. That's what I was trying to say in my last post last night.
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Abortion is legal, but clearly not mandatory. I can't imagine, currently, a situation where the law is going to penalize someone for not having an abortion where they would not penalize someone who was just a day shy of being able to have a legal abortion, or who had just given birth hours after her husband died.There is clearly a difference, to me, between not having an abortion, which for many would be a morally and religiously a non-option, and choosing to get pregnant via the implantation of stored embryos or semen 18 months after the death of the father.
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bsimon:In the case of the mother being pregnant when the father dies, that choice was already made.That certainly would be what a pro-life argument would suggest. But the pro-choice culture that prevails in the US claims quite explicitly that the choice of whether or not to have a child remains with the woman right up until either the child is born or is aborted. So the choice has not been irrevocably made.You're saying that revisiting that choice is the same as choosing to start the process alone.No, I am saying that a change in circumstances (the death of the father) has presented the woman with a new and unavoidable choice: bear that child in the absence of support, or don't. It is a choice the woman faces and has a right to make. It is hers and hers alone. Why should the state bear the financial burden of a choice that belongs solely to the woman?
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bsimon:In the case at hand, there was no fetus at time of death.The case at hand is not the one Mark presented in his post, but rather the one I presented in a later comment. The whole point of that was to assume the presence of a fetus at the time of death.
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Trying to make this an abortion argument is a red Herring. As you stated, it is about whether a fetus gets survivors benefits. The relevant point at which to ask the question is at time of death. No fetus at time of death? No benefits.
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"Why should the state bear the financial burden of a choice that belongs solely to the woman?"Why indeed. Come to think of it, why should the state support anyone's children? Surely the state's interest doesn't change when the choice to have children is made by a man?
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"Trying to make this an abortion argument is a red Herring"How? If one woman can choose to terminate her fetus for any reason, how it a different one worthy of support. We've already established it's not worthy of protection.
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BTW, as an aside, I am very glad to hear you use the phrase "life of her unborn child".scott, I've expressed my opinion before on abortion, and my personal beliefs run up against reality all the time and so I have chosen choice as an option for women with very strong restrictions on the timing, and the ultimate goal of sex education and availability of birth control as alternatives to unwanted or unplanned pregnancies with the desired result of reducing the frequency of abortion and consequences of illegal abortions. I am a woman who bore three children and value life unconditionally but also understand and lived through the days pre Roe v Wade and recognize the reality of the decision process for young women especially. If we as a nation, or the courts, change the rules regarding survivor benefits then we truly are "forcing" women to choose, and btw, life is full of unintended consequences and moral and legal choices we make as humans. I don't presume to judge your decisions or opinions and I would prefer if you didn't judge mine with a sanctimonious comment such as above. I don't think you know me well enough to know my moral values especially since morality is not something we generally discuss in the context of our debates. Again, as I've said so many times morality is a personal commitment and while our laws are based on justice and right vs wrong, one person's individual beliefs are not necessarily consistent with all the laws in such a complex legal system.
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Kevin:I can't imagine, currently, a situation where the law is going to penalize someone for not having an abortion.Two points. First, the issue I raise is not what we can imagine legislators or judges deciding to do. I can't imagine the law doing a lot of things I think it should do, and I can imagine it doing a lot of things I think it shouldn't do. The issue I am raising is what the logic of our pro-choice culture (both popular and legal) and the arguments made in its defense imply should happen in this situation.Second, the absence of benefits is no more a "penalty" for not having an abortion than is the granting of benefits a "reward" for carrying the baby to term. …which for many would be a morally and religiously a non-optionPersonal morality and religion is (or should be) irrelevant to whether the state should grant benefits. If you have the legal option to do something to rectify a given problem, and you freely choose not to avail yourself of that option (for whatever reason, moral/religious or otherwise), why should the state bear the consequent burden?A Mormon or Islamic woman is not compelled by law to marry a man who will take many wives, but she still does so for religious/moral reasons. Does that mean that the state is obligated to pay out full survivor benefits to each and every wife when the man dies? That, if the state does not do so, the woman is being unfairly "penalized" for marrying a polygamist?
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bsimon:The relevant point at which to ask the question is at time of death. No fetus at time of death? No benefits. You are ignoring the relevant question. Your premise is that a fetus is an entity with a right to or deserving of benefits (even if only benefits at some future date.) I am challenging that premise. The question is how you square this premise with the premises made about the status of a fetus with regard to abortion.
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It appears to me what you are saying then scott is that regardless of the circumstances of the husbands death pre birth, children should never be entitled to survivor benefits because the woman had the choice of having the child or not. Consequently because we have given women the choice they must live with the consequences. Is that correct?
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The question is how you square this premise with the premises made about the status of a fetus with regard to abortion. You square it by saying with respect to the fetus' right to benfits there is no competing interest. Whereas with respect to abortion, there is the mother's competing constitutional right to privacy/abortion.
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Scott, you have invented your own premise about abortion, as Ashot and I have both pointed out. The mother's right is absolute before the fetus is viable outside the womb; after that, abortion for convenience is forbidden in every state. Further, in estate planning law, a fetus has contingent rights – contingent upon survival through birth. You are recycling one note, I think.Ashot – if you practice in Fed Court, please help me understand what the hell the Circuit is talking about remanding for resolution of the fact issue? QB, too, please.
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bsimon:Come to think of it, why should the state support anyone's children?A reasonable question.Surely the state's interest doesn't change when the choice to have children is made by a man?I'm not sure what prompted this. Men in our society do not posess that choice. That choice, as has been made abundantly clear both legally and culturally, belongs solely with a woman. She may, if she wishes, consult with and take the desires of a man into account. But ultimately the choice is hers and hers alone.
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I have an idea, perhaps we could have different survivor benefit rules for women who are pro-choice and those who aren't? I'm glad there are a couple of lawyers here.See y'all later.
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"The mother's right is absolute before the fetus is viable outside the womb"When is that? I've heard of cases of survival for fetuses at 21-weeks. That age of viability is getting shorter and shorter.
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Scott, I wasn't ignoring the premise, I was ignoring your framing of the argument in a way that misrepresents the discussion.The law has to draw arbitrary lines. I think that is extremely difficult to do when trying to decode when life begins. Therefore I think the law shouldn't touch that issue any more than it already has. Instead I think the law should respect individual liberty – I.e. choice. In the case of abortion that puts the burden of choice on the parents. In the case of survivors benefits, the state needs to respect the choice to have children as represented by an existing pregnancy. But because the state also needs to protect the rest of us from those who would game the system, the arbitrary line must be drawn to deny survivors benefits to children who'd not yet been conceived at the time of death. Circling back to abortion, because the state is not prepared to raise children it decides should be born, the state should be denied the right to make that choice, which therefore defaults to the parents.
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Mark:after that, abortion for convenience is forbidden in every state.But as a practical matter, that isn't true. A woman who desires a legal abortion even after viability (which is, of course, a moving target) can get one.Even ignoring that, however, my point holds for whatever period of time that a woman has the legal option of obtaining an abortion. If that is 3 months, so be it. If that is 9 months, so be it. The point is simply that the justification for allowing abortion has logical implications for this hypothetical.Further, in estate planning law, a fetus has contingent rights – contingent upon survival through birth.That is interesting. So estate planning law also contradicts the logic behind allowing abortion. I'm not sure that fact has any implications for the argument I am making, but it is interesting.You are recycling one note, I think.I'm not sure exactly what you mean, but unless I think my argument has been logically refuted (which I don't), why would I change it?
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Mark- Did the Court say "resolution of the fact issue?" If so, I don't know why they posited the issue of dependency as one of fact, but they refused to address the issue of depenedency because the District Court held that the twins did not meet the definition of child. So the 3rd Circuit only addressed that issue and not the dependency issue. I think they were just trying to make it clear that the only issue remaining for the District court was the issue of dependency. I do agree that is an issue of law and not fact.
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I wrote for your benefit earlier:There is a courtesy involved in letting a trial judge rule on a legal issue he did not reach, which he did not here, but that used to involve a remand with an order to enter a trial judgment in accord with the appellate opinion. Here that would read something like this: "the trial court ruled incorrectly that the twins were not children of the deceased, and as a result did not reach the dispositive issue, which is that at the time of Mr. C.'s death there were no twins in the oven or on the ground for him to support. The fact that he made provision for them in the future does not in any way mean that the twins conceived after his death could have anticipated his support.The trial court is ordered to reform his judgment in favor of the government in accord with this opinion."That cleans up the record as to why the twins are denied coverage. Remanding to determine the facts seems myopic.****************************I am considering the remand to determine whether or not these twins were dependents a remand to determine a fact.Glad you agree that the only issue remaining is one of law and we agree on the underlying notion of the remand. I do not feel as at sea having one other lawyer agree!
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The point is simply that the justification for allowing abortion has logical implications for this hypothetical.Why? The legal justification for allowing abortion is the mother's privacy right. What logical implication does that have in this hypothetical? It seems to me that Courts have generally avoided making a determination on when life begins. Instead they focus on the mother's right and the state's interest and attempt to balance those two. Given that neither of those interests are involved in your hypothetical, you can safely give those benefits to a fetus without touching the justification for allowing abortion.
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Scott, the moving target of the maturing fetus was addressed at tedious length in W. v. R. There are many abortions of convenience performed in America as opposed to competing life/health rights abortions and these convenience abortions are in fact illegal after a certain term. The maturing rights of a fetus are mot logically inconsistent with its contingent rights in estate and property law.NoVaH, you are absolutely correct: W. v. R. has the eventual seeds of its own diminution as a precedent built into it.
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bsimon:The law has to draw arbitrary lines.Sometimes, but not necessarily. Regardless, I am not arguing about where such a line ought to be drawn (although I am willing to). I am simply saying that, having drawn that line in one instance (abortion), there are logical implications for others.Certainly it is possible for internally inconsistent and logically contradictory laws to coexist on the books, a result of drawing an arbitrary line in one place for one law and in a different place in another. But I am not so concerned with what the law actually does. I am concerned with what it should do. And I that if argument X is used as justification for one law, it ought not be so easy to simply ignore that argument in another simply because it doesn't produce a result one desires.I think that is extremely difficult to do when trying to decode when life begins.Only if one is intent on not drawing that line in the most obvious and scientifically justifiable place, namely at conception. Then, I agree, it becomes a lot more difficult.
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Ashot, I consider the "privacy" strand of these cases the weaker reed. It is the question of who is a person who can invoke the constitution that is, I think, stronger.Texas argued that personhood began at conception. Roe argued it began at birth.The viability outside the womb splitting of the baby was how the Court met the two arguments. Roe's lawyer, a friend of mine, btw, conceded that if personhood began at conception she must lose, on oral argument.
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Remanding to determine the facts seems myopic.I agree. I should go look up how or if "dependent" is defined in the statute. But the only question remaining is whether or not the twins met the definition of dependent at the time the father died. I'm struggling as to what competing facts could exist with resepect to that point.
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If life begins at 'conception', must women report every menstrual cycle following sexual activity as a potential death?
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Mark:There are many abortions of convenience performed in America as opposed to competing life/health rights abortions and these convenience abortions are in fact illegal after a certain term.What percentage of these illegal abortions do you suppose result in charges against the person who performed it or the perons who obtained it? When was the last instance of such a charge being brought?
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bsimon:If life begins at 'conception', must women report every menstrual cycle following sexual activity as a potential death?I certainly wouldn't support such a requirement.
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Ashot, I consider the "privacy" strand of these cases the weaker reed. It is the question of who is a person who can invoke the constitution that is, I think, stronger.I agree, but doesn't that view support Scott's argument? If the justification for abortion is that a fetus has no rights then how is a fetus entitled to these benefits? If the definition of "child" under SS survivor benefits includes a fetus then it is a different definition than what we use when discussing abortion.
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For Scott:http://writ.news.findlaw.com/colb/20070206.htmlNot exactly on point, but indicates that TX takes these matters seriously.
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Ashot, as you know, even a tiny fetus has some rights, so to speak. The context of the abortion cases is, as you say, the balancing of these rights, and the fetus' rights evolve during term.
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"If the definition of "child" under SS survivor benefits includes a fetus then it is a different definition than what we use when discussing abortion."Yep. I'd say we avoid such issues if at all possible. Impossible to do so regarding abortion, but not with survivor benefits. But I can appreciate how this infuriates the pro-life crowd, as our society has decided that the answer to whether or not a fetus is worth protection is "it depends." hardly a satisfying answer.
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"I certainly wouldn't support such a requirement."Why not? A life ended. Potentially, anyway.I was surprised to learn, when my wife and I decided to start a family, that about 1 in 4 pregnancies are not carried to term. Most of those are miscarriages, not abortions.
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For the non-lawyers here, a bit of history. Very important in the development of Anglo-American real property law was "The Rule Against Perpetuities".To avoid the dead hand on marketability of real estate, it could only be willed with restrictions against sale for a period measured by a life in being of a person alive when the decedent died, plus 21 years, plus a gestation period. That was because at common law the fetus was recognized as a life for the purpose of the entailment. More later, gotta go.
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Mark:Your link seems simply to demonstrate the incoherency and contradictions in the law. If she had sought to destroy the fetus via an abortion, the state professed no interest in protecting the life of the fetus. An abortionist was perfectly free to destroy the fetus upon her request. But the state does profess an interest in protecting the life of fetus from the beatings of her boyfriend…even though she chose to be beaten for the exact purpose of destroying the fetus.It makes no sense.In any event, the point of me asking how many of these illegal abortions are prosecuted was, as I suspect you know, to demonstrate that an act against which laws exist but are never or almost never enforced can hardly be characterized as being "illegal" in any practical sense.
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bsimon:Why not?I see no reason for it. Why would you expect me to? What possible purpose would it serve? was surprised to learn, when my wife and I decided to start a family, that about 1 in 4 pregnancies are not carried to term. Most of those are miscarriages, not abortions.I thought the number of miscarriages was even higher.
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Ashot, as you know, even a tiny fetus has some rights, so to speak.Right, but if the government could shoot me as I walked down the street, the fact that I have the right to free speech is relatively worthless. Like NoVA said, we should and do avoid the issue so long as there is no competing right to balance it against.
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PS. It's snowing in Detroit.
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I wish Mike were around to weigh in. As a virologist, I'd like to hear his perspective on life at this (the macromolecular) level.What? Huh? Geez, you guys are prolific. Well, here's my contribution to the 200 post attempt."Conception," as I understand it, is what I would call fertilization — sperm and ovum coming together, resulting in a zygote. The zygote is a cell that can replicate and has the potential to differentiate to any type of cell in the body. Another name for this type of cell is an pluripotent (well, "omnipotent" in a science-y way) stem cell. That zygote eventually undergoes blastulation to form a blastocyst (6-8 cell stage). Blastocysts are generally what is implanted when you undergo IVF. So, "life" could be defined as beginning at the blastocyst stage. About 16 days after fertilization, gastrulation occurs, where your ectoderm, endoderm, and mesoderm form. This is when the father's DNA starts making a contribution toward development. This stage is a better starting point for the definition of life than blastulation, IMO. From there, the next logical point for the beginning of life is the ability to survive outside the womb. I believe the earliest preterm baby to have survived was born at 22 weeks.
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For the non-lawyers here, a bit of history. Very important in the development of Anglo-American real property law was "The Rule Against Perpetuities".Thankfully my Property professor gave us a no-brainer RAP question on our final. Otherwise I imagine reading that phrase would send chills up my spine.
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"I see no reason for it. Why would you expect me to? What possible purpose would it serve?"Perhaps I am misunderstanding your argument which I understand to be: 1) the state has an interest in protecting the lives of the unborn and 2) life begins at conception. If both those are true statements, the state has in interest in investigating whether a life was lost when a woman's body purges waste material at the end of their cycle. This material, at some unknown level of frequency, contains fertilized eggs – life, by your definition. Surely the state's interest in protecting the unborn requires determination of whether a crime was committed when this happens; perhaps through the use of ru-486, for example.
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Mike:sperm and ovum coming together, resulting in a zygote. The zygote is a cell that can replicate and has the potential to differentiate to any type of cell in the body. Is this cell not a living organism? If not, how does it manage to replicate?
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bsimon:Perhaps I am misunderstanding your argument…Perhaps.I think it is clear that life begins at conception. I also think that a right to life inheres in humans upon conception.The point at which the state (or wider society, acting through the state) begins to have an interest in protecting that right, what measures it should use to protect that right, and especially the lengths to which it should or even can go to do so, are all much more difficult questions, and are certainly subject to reasonable disagreement. With regard to your specific reductio ad absurdum example, there are plenty of instances in which the government does not take literally all the steps it could possibly take in order to protect certain rights or enforce certain laws. This is true for both practical reasons and for reasons of justice. Such would be the case for your proposal, and I would think so even if I were a hardcore, no holds barred anti-abortion advocate (which I am not). The impractical nature of any such requirement and the intrusiveness involved, not to mention the infinitesimal benefit relative to the effort required would, even if it were not already absurd on its face, render it to be senseless policy.
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Scott:Is this cell not a living organism? If not, how does it manage to replicate?Well, I view it the same way that I view the cells that I grow in culture for our research. I don't view each one of those cells as having a "life" in the sense that I view a person as having a "life." The cultured cells we use do replicate, given the right environment, just like the zygote will replicate in its proper environment. But a flask of replicating cultured cells does not represent a living organism to me.On the flip side, single-celled organisms like bacteria are viewed as "life" because they are completely mature at "birth."
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Mike:I don't view each one of those cells as having a "life" in the sense that I view a person as having a "life." Whether or not it is in the same sense as some later stage of development, isn't it true to say that a zygote is a living organism?On the flip side, single-celled organisms like bacteria are viewed as "life" because they are completely mature at "birth." So, by such a standard, a new born baby would not be a life because it wasn't completely mature at birth?
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Go for it, Mike! Woot, woot, woot!!!(We'll wear you down eventually, Scott)
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ScottC wrote"The point at which the state (or wider society, acting through the state) begins to have an interest in protecting that right, what measures it should use to protect that right, and especially the lengths to which it should or even can go to do so, are all much more difficult questions, and are certainly subject to reasonable disagreement." And that is the point of the absurd argument: to ferret out the nuance stated above.
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Scott:Whether or not it is in the same sense as some later stage of development, isn't it true to say that a zygote is a living organism?I would say that a zygote is living, in the sense that my cultured cells are living, but an organism? Not so much. Part of becoming an organism is undergoing development (see below).So here's the question: what is the difference between zygotes and cultured cells? (For the purposes of this discussion I will ignore the cancer cell lines I work with because they are totally different.) Both replicate under the right conditions, both have the potential to differentiate, both contain full genetic programs (genomes/DNA) to make a human body. The only real difference is if you differentiate a zygote into a blastocyst and implant it into a prepared uterus, you may eventually get a human being. Induced pluripotent stem cell technology isn't quite to the point where we can get induce embryonic stem cells, but it may (will likely?) happen in the future, at which point the line between zygotes and cultured cells will blur even more in terms of debating what "life" is. So, by such a standard, a new born baby would not be a life because it wasn't completely mature at birth?That was poorly worded on my part — scientific jargon, sorry. By mature, I mean "fulfilled its developmental program sufficiently to live independently." Not that neonatal mammals are completely independent of maternal care, but sufficiently so that it is possible for them to find a competent surrogate for survival.Of course, everyone agrees that a live birth baby is a life.
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Mike:I would say that a zygote is livingGreat. And since the zygote was created upon conception, isn't it therefore fair to say that life was created upon conception, granting of course your stipulation that this life is somehow of a different nature than a new born baby?The only real difference is if you differentiate a zygote into a blastocyst…But with a naturally occurring zygote, "you" don't have to do anything. It does it itself, doesn't it? Isn't that really a pretty significant difference between a zygote and your cultured cells?
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Scott:isn't it therefore fair to say that life was created upon conception, granting of course your stipulation that this life is somehow of a different nature than a new born baby?No, because I would argue that, by that definition, ova and sperm are also living. So, life was not created by fertilization, but was a pre-existing condition for the constituent components of the zygote. The zygote then is just a different living cell type. But with a naturally occurring zygote, "you" don't have to do anything. It does it itself, doesn't it?Well, "I" don't have to do anything — I don't have a uterus. Dudes like us just sit back and watch it all unfold. 🙂 But without the proper vascularization of the uterus, hormone secretion, etc., the blastocyst cannot implant and is therefore non-viable. That's why women undergoing IVF have to have hormone treatments to prepare their uteruses (uteri?) for implantation. So, the zygote or blastocyst is really not viable outside of either the female reproductive tract or some very specialized biological media with lots of growth factors.
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Scott:bsimon and Mike have been telling you (much more articulately than I did) the exact same thing(s) I was telling you last night. I don't think you're going to persuade any of us that your position is the correct one in this case.And the lawyers appear to have dropped out, so I don't think you've persuaded them, either.Perhaps scientists and lawyers have more informed opinions in this particular case???? After all, we defer to your expertise in money matters.
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Mike:No, because I would argue that, by that definition, ova and sperm are also living. So, life was not created by fertilization, but was a pre-existing condition for the constituent components of the zygote. The fact that life was a pre-existing condition does not preclude the possibility of the creation of a new life. I think we can agree that a new life gets created at some point, and we also know that, whenever that point is, life was a pre-existing condition, whether it was egg and sperm, zygote, or something even later in development. So to object to the claim that life was created upon conception on the grounds that life pre-existed it doesn't seem to me to be a sound objection. I think it is clear that the fusion of the sperm and egg creates a new, unique entity that did not previously exist. You have already conceded that that entity, the zygote, is life. And so it seems entirely reasonable to me to say that the fusion of egg and sperm, conception, creates a new life. I don't understand what objection there could be to such a claim.The zygote then is just a different living cell type.Yes, exactly. One that did not previously exist until conception. Conception created it. It is a life. Hence, conception created life.
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Mich:Mike has already conceded part of my argument, namely that a zygote is life. Now, if I can just get him to acknowledge the obvious implication of that, namely that the life was created at conception, I will be well on my way to establishing agreement with my original claim. In other words, although you say Mike is simply saying the same things you were, he has already conceded Part of my argument.Perhaps scientists and lawyers have more informed opinions in this particular case????Of what? It is likely that lawyers are more informed than me about what the law says, and scientists are probably more informed than me about the workings of their area of expertise. But I defer to no one when it come to rational thinking and drawing logical conclusions from given statements and information. And I would never expect you to simply defer to my opinions on finance simply because I have more knowledge or experience with certain things in the world of finance. Indeed, I would fully expect to be able to use my knowledge to make a convincing case, and respond to any challenges that you could come up with. I'm definitely not a fan of the argument from authority, ie "trust me, I know more than you."
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I believe that he's "conceded" that a zygote is life in the same way that I've "conceded" that a genome is life.What I'm suggesting is that we drop this for now, as you as simply reiterating yourself and so are we. Perhaps another day. . . come in from the cold and join us on Bits & Pieces, won't you?And, as a personal aside, I'd be interested in knowing if you've got an opinion on my V-day post. Don't hold back (not that I'd expect you to) 🙂
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Scott:You have already conceded that that entity, the zygote, is life.No, I did not. I said that a zygote is living, not that it is life. Those two words have very different meanings to me. Living is the ability to replicate in specific conditions. Life is fulfilling your genetically predetermined developmental pattern to a point where you can survive somewhat independently in the appropriate environment. That is the context of my statement. As I said, cultured cells are living in the same sense as zygotes, but they certainly are not life in my book. Do you think cultured cells are life? If so, then I grant that zygotes would fit your definition of life. But not mine.Yes, exactly. One that did not previously exist until conception. Conception created it. It is a life. Hence, conception created life.No, fertilization created a new cell from two existing cells. It is not life but just another living cell that is different.
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Mike:I said that a zygote is living, not that it is life. Those two words have very different meanings to me.That is an interesting distinction. But I wonder what justification thereis for drawing it.From a strictly semantic viewpoint, to say that a thing is "living" is to say it has life, or that it is a life. It strikes me as conceptually incoherent to consider a thing to be "living" but not a life.But beyond the semantics, I look at it this way. When an egg and sperm fuse together, a new entity comes into being. Throughout the course of its existence, this entity will go through a self-generated and unending process of development and change. The name for this process and its continued existence is…life.What justification is there for excluding the initial and most fundamental stages of development of this entity's existence from one's understanding of the life of the entity? Doesn't it make more sense to undertand its life to encompass all of its development rather than just a selected portion of it?
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Mich:And, as a personal aside, I'd be interested in knowing if you've got an opinion on my V-day post.I will try to add a comment to that post later today. I'll let you know when it is up so you don't miss it.
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Scott:It strikes me as conceptually incoherent to consider a thing to be "living" but not a life.Then I would ask you again whether you consider a cultured cell to be a life. The distinction is very important for my work as a scientist. Cells must be "living" (actively metabolizing) in order to be able to be infected. But if you consider each individual cell to be a life, then you must consider anyone doing molecular/cellular biology of human cells to be a mass murderer because we have to destroy the cells in order investigate what is going on inside. When an egg and sperm fuse together, a new entity comes into being.By your definition of life, every time a cell mutates or we manipulate a cell in the lab, a new entity comes into being because a cell with that specific genetic program has not ever existed before.
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Mike:Then I would ask you again whether you consider a cultured cell to be a life.If you tell me it is living, then yes, I say it is a life.But if you consider each individual cell to be a life, then you must consider anyone doing molecular/cellular biology of human cells to be a mass murderer because we have to destroy the cells in order investigate what is going on inside.No. The term murder has a very specific meaning with moral and legal implications. It is not a scientific conclusion, and so within the context of our discussion I would not be forced by logic or reason to conclude any such thing. I would simply be forced to conclude that they have destroyed or killed the living cells. Which they have done, no?By your definition of life, every time a cell mutates or we manipulate a cell in the lab, a new entity comes into being because a cell with that specific genetic program has not ever existed before.That may be the case. I am not familiar enough with what you are talking about to have a view. But what I would say that there is a difference in my mind between a change or transformation of a thing and the creation of a new and previously non-existing thing.
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Scott:I would simply be forced to conclude that they have destroyed or killed the living cells. Which they have done, no?Correct. But by your definition, you have thus destroyed or killed a life. And if those cultured cells are derived from a human, you have destroyed or killed human life.As a technical matter, a zygote is still mostly an ovum, it has just gotten an injection of DNA from the sperm. I hadn't thought about it this way before, but it almost is like a viral infection, where the sperm's nucleic acid is deposited into the ovum and the rest of it stays outside.Ugh. Now I've opened a whole 'nuther can of worms for myself.
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I agree, the statute clearly does not provide benefits to them, nor is there any fact issue. Once we know they were conceived 18 months after daddy's death, we don't need to know anything else. No bennies, since they didn't exist at the relevant time.
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Mike:But by your definition, you have thus destroyed or killed a life. And if those cultured cells are derived from a human, you have destroyed or killed human life.Whether or not they are human life is a matter for a separate discussion, and is irrelevant to whether or not they qualify simply as life. But is that why you are reluctant to call it life? Because of the perceived moral implications of doing so? If so, I have to say it isn't a very good reason.
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Thanks, QB and Ashot. I read through that case, got to the remand, and thought I must be nuts, if three esteemed Circuit Judges thought it needed remand for a fact finding, rather than a remand to conform the judgment to the Circuit opinion.
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Scott:But is that why you are reluctant to call it life? Because of the perceived moral implications of doing so?No. As I have mentioned before above, life to me "is fulfilling your genetically predetermined developmental pattern to a point where you can survive somewhat independently in the appropriate environment." I know that is a mouthful of scientific jargon, but it also encompasses my view on viruses as not being life (which obviously comes up once in a while in my professional life, as it were). A cultured cell, or a zygote, cannot survive independently without lots of help (growth factors).
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Mike:As I have mentioned before above, life to me "is fulfilling your genetically predetermined developmental pattern to a point where you can survive somewhat independently in the appropriate environment."But, again, this is conceptually incoherent. The concept of "survival" applies to something that already has life. To survive is to maintain life. To not survive is to fail to maintain life. In either case life itself must already be present. To say that a thing cannot survive under given conditions is to say it has life which cannot be maintained under those conditions. It is one thing to differentiate between the quality or nature of a particular life depending on it's ability to survive under certain conditions. It is quite another to attempt to define away the fact of life by claiming it doesn't exist unless it can survive under certain conditions. The latter is quite literally nonsensical.
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New post is up for your reading pleasure. . .
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Scott:It is quite another to attempt to define away the fact of life by claiming it doesn't exist unless it can survive under certain conditions.I think you are missing the point. Life to me means something that can live relatively independently. Yes, I know you'll argue that babies need nourishment from their mothers, etc. But, they do not have a necessarily parasitic reliance on maternal care. On the other hand, a cultured cell, which you have determined to have life, depends on a very artificial set conditions to grow/replicate.I understand that your position, anything that can grow and replicate and metabolize, regardless of the artificialness of the environment, has a life. I don't. I use the term "living" as shorthand to describe cells that actively metabolize the nutrients that I give them so that they will multiply and be good substrates for my experiments. But despite my not agreeing with your position, I do not claim that it is nonsensical. Perhaps you would give me that same respect. Perhaps not.
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Mike:Yes, I know you'll argue that babies need nourishment from their mothers, etc.No, I won't. I'm not at all focused on trying to maintain an equation between newborn babies and zygotes. I am trying to understand how you can think a thing, any thing, can be both living and not a life at the same time. If you want to discuss that proposition within the context of plant life rather than human life, the proposition will remain just as bewildering.It seems to me that the only justification for saying that certain living things do not have a life is that you want to.I understand that your position, anything that can grow and replicate and metabolize, regardless of the artificialness of the environment, has a life.My position is that anything that is said to be living must necessarily be a life.But despite my not agreeing with your position, I do not claim that it is nonsensical.Well, one reason might be because it isn't. But please understand. I am not using the term to be disrespectful or as a slam against you, or to get under your skin. I am using it in a very literal sense to explain my objection to what you say. If someone spoke of a square circle, I would find that notion nonsensical, and could only explain my objection to the notion by saying so. This is precisely how I consider your claim that a thing can be said to have a life only if it can survive in certain conditions. The concept "survive" presupposes the existence of life, so it cannot sensibly be the determiner of whether life exists. Speaking of the survival or failure to survive of something that does not already possess life is, like the notion of a square circle, quite literally nonsensical to me. I literally can make no sense of it. What is it that either survives or fails to survive if not, well, life?
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Scott:My position is that anything that is said to be living must necessarily be a life.And around we come again to the same problem. So that we can get off this linguistic merry-go-round, I am willing to change my usage of the word "living," which I use daily in a scientific sense, to the phrase "replicating and metabolizing" for the purposes of this discussion. Replication and metabolism, then, are necessary but not sufficient functions for life. I hope that this change will allow you to make more sense of my statements.Thus, to recap: cultured cells and zygotes can replicate and metabolize but are not what I would consider life because they do not produce the full range of processes that encompass life, require specialized conditions for replication and metabolism, and do not represent the complete organism from which they are derived.
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Mike: I am willing to change my usage of the word "living," which I use daily in a scientific sense, to the phrase "replicating and metabolizing" for the purposes of this discussion. The value of this discussion for me was that it was taking place within the context of scientific understanding. It doesn't make sense to me for you to abandon your scientific understanding of things in order to make your conclusions more coherent. It seems to me that your scientific understanding of things ought to lead to your conclusions, not vice-versa.But, anyway, early on in this discussion I asked you if a zygote was a living organism. You said you didn't consider it an organism, but you did consider it to be living. Am I to understand you now to be saying it is not living?
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Just curious: is one of my hairs animate or inanimate? How about my toenail? If they are animate on my body, are they inanimate when I cut them off? Did I "kill" them? Does being animate define a life form? I do buy that any life form must be animate.What makes a virus not a life form for a virologist? Is a histamine a life form?A snot ball? Many organic compounds like petroleum are not life forms and are not animate. Is that what a virus is more like? A small oil blob?I am asking from absolute ignorance here.I have never thought about this and do not have the background to do so. Frankly, I am interested in Mike and Michigoose's responses here, I am sure I have stupidly mixed apples and oranges, but I seek to know ever so little, because that would be infinitely more than I know now.
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Scott:It doesn't make sense to me for you to abandon your scientific understanding of things in order to make your conclusions more coherent.I'm not abandoning my scientific understanding. As a professor, I've found that beating a dead horse is not an effective way of trying to get your point across and that it is better to try a different tack. Since you seem to be getting hung up on your understanding of the word "living," I'm trying to use more precise terminology in the hopes that you will better understand my point. Biologists tend to use the term "living" as shorthand for a subset of the processes that encompass life.As for your question, when I used "living," I used it in the sense that I do when I talk to my colleagues, not in the way you apparently use it. I don't think I can be more clear than the last paragraph in my previous post about what I mean. If that is still not clear, then I'm not sure there is much left to discuss because I'm really at a loss on how further to communicate in terms that you will understand.
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Mike:I'm not getting hung up on my understanding of the word living. I am getting hung up on your understanding of the relationship between the concepts "living" and "life", as well as the relationship between the concepts "survive" and "life".
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