Owning Persons: The Application of Property Theory to Embryos and Fetuses

59 Pages Posted: 2 Nov 2004 Last revised: 18 Apr 2013

See all articles by Jessica Wilen Berg

Jessica Wilen Berg

Case Western Reserve University School of Law


Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos' legal status is lacking.

This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, as the latter is strongest in those cases where procreation has not yet occurred - e.g., sterilization and contraception. Finally, this article is the first to provide a substantive evaluation of the application of property theories.

The approach is sure to challenge commentators on all sides of the debate. For those who argue that embryos and fetuses are persons, the strong property interests will likely be unpalatable. Similarly, the implications of the combined framework for limiting those property rights as the entity develops will likely be unacceptable to advocates of extensive procreative choice during pregnancy. Nevertheless, this framework provides a more accurate understanding of the legal issues, and therefore may facilitate the eventual resolution of the protracted battle regarding the legal status of embryos and fetuses.

Keywords: Fetus, Embryo, Stem Cell, Person, Property, Bioethics

JEL Classification: K11, K32, K49

Suggested Citation

Berg, Jessica Wilen, Owning Persons: The Application of Property Theory to Embryos and Fetuses. Wake Forest Law Review, Vol. 40, Spring 2005; Case Legal Studies Research Paper No. 04-16. Available at SSRN: https://ssrn.com/abstract=613903

Jessica Wilen Berg (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-6363 (Phone)
216-368-2086 (Fax)

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