State v. Unborn Embryo

Scene: A courtroom, with a judge in the center situated behind a desk on a raised dais. At ground level, a prosecutor sits at a table on house left and a defense attorney does the same along house right. All introductions and preliminary activities have been completed. Thus, we join the action already in progress.

Judge: Alright, with all those boxes checked off, we can officially get this pretrial conference underway. We are discussing the impending case concerning the alleged homicide of V.E. at the hands of U.E., and under what conditions.

Defense: V.E., your honor? U.E.?

Judge: Being that both the victim and the defendant are minors, we will use pseudonyms for them: V.E. for the apparent casualty Vanished Embryo and U.E. for your client, Unborn Embryo.

Defense: I understand now, thank you.

Judge: Very well. If there are no further questions from council, we can begin.

Prosecutor: None, your honor.

Defense: Me either.

Judge: Great. Prosecution, can you please provide a synopsis of the key points surrounding this suit?

Prosecutor: Gladly, your honor. After approximately six weeks of pregnancy, an uninvolved third party we shall call "Mother" went in for an ultrasound. During this examination, it was discovered that there were two unique embryos growing within her, the aforementioned V.E. and U.E.. The attending physician determined that each was healthy and developing normally. Due to the medical history of Mother, it was decided that she should seek ultrasounds on a more frequent basis than is typically recommended. As such, at the session during the ten week mark, the murder of V.E. by U.E. was witnessed and recorded.

Defense: Objection, your honor.

Judge: On what grounds?

Defense: The prosecution is being prejudicial. The act described in the complaint is not murder. "Vanishing Twin Syndrome" or "Twin Resorption" is a fairly common medical occurrence where a non-viable embryo is absorbed into another one sharing the same uterus. Studies indicate that this may happen amidst one in eight multi-fetus pregnancies, if not more often.

Prosecutor: Your honor, may I respond directly?

Judge: Please!

Prosecutor: First, let's make sure we're all on the same page as to what we're really talking about here.

Defense: Of course, that's only fair.

Prosecutor: Okay, then we'll begin with a simple question for the defense: did our state, by both law and judicial precedent, determine that not only is a fetus a person, but that personhood actually begins at the moment of conception?

Defense: While what you have said is technically accurate, the defense does not agree with that conclusion at all—which is why it is a part of our core contentions that we intend to make in open court.

Judge: (Banging gavel) No, no, no, we'll have none of that! The defense can bring that opinion up in appeals, if they like. As far as this court is concerned, we are bound by the rulings that have been handed down from the highest magistrates in our state. I have no interest in reopening litigation into these already decided issues, and will not allow the defense to turn my courtroom into a circus in order to do so. Have I made myself plain enough for you, councilor?

Defense: (After a long pause) Very well, your honor. Then I concede this line of reasoning to the prosecution.

Prosecutor: Fantastic! So, let me continue by asking you this: would the act of killing a person who happens to be an embryo—no matter the perpetrator—be, by definition, considered a homicide?

Defense: (Mumbling) Yeah, yeah, I suppose so...

Judge: Council will speak clearly and distinctly.

Defense: (Loudly, articulating every word) Yes, your honor; I agree to the prosecution's assertion.

(The Judge appears ready to admonish the Defense again, but the Prosecutor signals to let them continue. The Judge makes a motion acquiescing to this non-verbal request.)

Prosecutor: Finally, in our state, does the criminal code unambiguously express that should the perpetrator of a homicide be under the age of majority, that they shall be charged as an adult?

Defense: (Rubbing eyes and forehead) Yes, in our state, all you have said is true.

Prosecutor: Now, since you have yielded to all of my positions, I can finish what I was saying before. In the recording of the previously discussed ultrasound, does it or does it not show U.E. in the act of ingesting V.E.?

Defense: "Ingesting" may be a strongly leading and scientifically inaccurate word, but yes, that is essentially what the video shows.

Prosecutor: That's what I thou—

Defense: (Cutting off the Prosecutor) However, it's fair to note that this is the first time in history that the act of twin resorption has been caught on camera while it was happening. In every other instance before now, the second twin simply disappeared between ultrasounds with no explanation. Oftentimes, the only way doctors have been able to tell that the event may have occurred at all was by testing the surviving twin and discovering that it was a physiological human chimera—that is, a person where at least some cells can be found to have a distinct series of genes compared to their main ones. These separate sets of DNA can potentially even result in different blood types coursing through an individual's arteries! In the interest of being precise and not misunderstood, I want to categorically say, for the record, that the second set of genetics most likely must have come from the embryo that was absorbed. In other words, what happened between V.E. and U.E. was a perfectly natural, and innocuous, incident.

Prosecutor: Unfortunately, as far as this situation is concerned, all that biological minutiae you just excreted is completely irrelevant.

Defense: What? Why?

Prosecutor: Motive is not a replacement for an examination of the objective truths as they unfolded. What we are talking about is legality, not rationalization. More so, just because the deed had never been directly documented before or that the evidence was too circumstantial to convict, it does not mean that there wasn't a crime.

Judge: I'm afraid I must agree. Everything the defense has highlighted is immaterial to the case at hand. We are required to concern ourselves only with the unequivocal facts, the letter of the law, and historical practice.

Defense: Historical practice, your honor? With all due respect, this case only exists because of advanced modern technology! What was captured on that ultrasound recording would not have been possible even a few years ago, nonetheless hundreds of them. The founders of this nation couldn't possibly have foreseen or conceived of this specific situation, not even remotely. They simply lacked the scientific knowledge we have nowadays; they had no frame of reference from which to begin to understand.

Judge: Nevertheless, we are compelled to follow the "history-and-tradition" test, reacting and ruling how the founders would, always taking into consideration what they would want and how they would approach the circumstances. Is that not at the heart of everything we do inside these hallowed halls?

Defense: (Silent again for a period before beginning) Then, if that's the way it's going to be, what specific type of homicide is the prosecution planning on pursuing against my client?

Prosecution: (Without hesitation) Murder in the first degree.

Defense: How? That requires intent! The brain isn't even in operating control of the body until the second trimester, sometime around eighteen weeks out.

Prosecution: Once again, the status of so-called "developmental milestones" has nothing to do with the accused or the case against them. We have already established that an embryo is a person, and that by history-and-tradition there is no distinction on the type of person based upon a particular medical disposition.

Defense: Lacking a functional brain is a "medical disposition", by your estimation?

Prosecution: It doesn't matter what I think; it only matters how the founders would view things. Since they understood anything growing inside the womb of a woman like Mother to be a person, then that is what it is, with all the rights, privileges, and responsibilities expected of any other citizen of our state.

Defense: Yet don't we have laws that distinguish between competent people and those who are incapable of making decisions for themselves, such as the intellectually disabled... and children?

Prosecutor: You are talking in circles; you have already made that argument and admitted defeat when you agreed that all alleged murderers are charged as adults.

Judge: Yes, that's quite enough, councilor. This isn't the full trial, so we don't need to get into all these nitty-gritty details right now. If you want to argue fitness in that forum, you are more than free to do so, if you believe it will make any impact.

Defense: But your honor...

Judge: No buts! As the prosecution has been painstakingly attempting to help you understand, at this time, all we're doing is establishing the framework for how we'll proceed going forward. Hence, if you don't have anything new or relevant to add in that vein, can we please move this thing along already? I'm quite busy and have a lot more on my docket to get to today.

Defense: I... I... I... have nothing to add, your honor.

Judge: Excellent. Prosecution, please continue. Should U.E. be found guilty of the charges, what sentence would you be seeking?

Prosecutor: Given the severity of the crime, the age of the victim, and the low probability of repentance, we will seek the death penalty.

Defense: Wait... so you want to force Mother to terminate her pregnancy, and my client in the process?

Prosecutor: Heavens no, and I'm ashamed you'd even suggest such a crass thing in this courtroom! All life is sacred, councilor, even those who have not yet entered the light.

Judge: Quite so! Besides, there is no provision in this state that would allow such a... such a...

Defense: Abortion?

Judge: ... inhumane travesty to occur. No matter the outcome of this case, Mother will carry U.E. to term and they will be born just as God intended. Once done, and if necessary, we will then be able to carry out their justly determined sentence.

Defense: The sentence of putting a newborn to death...

Judge: Well, honestly, I can't see it happening right away. I'd certainly expect the defense to appeal any adverse ruling.

Prosecutor: Your honor, if I may? For the duration of the appeals process, the prosecution is willing to formally enter into the record that we will allow a stay of the verdict without any quarrel.

Judge: (Very pleased) Quite magnanimous of you!

Defense: But appeals could take years, even decades...

Judge: And as with any convicted felon of this caliber, U.E. would await their judgment behind bars.

Defense: (Opening their mouth several times to speak before finally requesting) If it would please the court, I would like to summarize everything we have discussed thus far.

Judge: I'll allow it.

Defense: The prosecution wants, and the bench agrees, that my client U.E., an embryo currently residing inside of Mother's uterus, shall be tried in absentia as an adult for murder in the first degree of their twin sibling V.E.. Should they be found guilty beyond reasonable doubt, Mother will be forced to continue her pregnancy and give birth to U.E., who will then be apprehended and placed in prison. Either the newly produced U.E.—of whom being born was a divine necessity because all potential human life is sacrosanct—will be immediately put to death or instead grow up inside a barred cell while the appeals process plays out. Assuming all efforts are unsuccessful, somewhere in the ensuing years, perhaps decades, U.E. will be executed.

Judge: Yes, that sounds about right.

Prosecution: I see no faults in the defense's logic.

(The Defense hangs their head and stays silent. A few moments pass where the Judge and the Prosecution are looking at each other, making various faces, eye movements, nods, and signals in expectation of the Defense saying something else. Nothing ever comes. Eventually, the Prosecutor just shrugs their shoulders.)

Judge: Well then, it sounds like we've reached a consensus on how to proceed. Therefore, (bangs gavel) this pretrial conference is hereby adjourned.

J.P. Prag is the author of several works, including the solutions-focused political proposal book New & Improved: The United States of America, available at booksellers worldwide. Learn more about him at www.jpprag.com.

The United States government is broken to the point where we can no longer have a single discussion without claiming partisan favoritism. Perspective does not matter because the entire political process has become a quagmire where nothing happens. Why is it so out of control? Every side will blame each other, but where are the solutions?

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