by Heather E. Ross, Esq.

Your vote matters.  Make sure you vote, and make sure you are knowledgeable about each political candidate’s stance on reproductive issues.  The outcome of this election could affect the accessibility of reproductive treatment and the ability of doctors to offer family building options through assisted reproductive technology (“ART”). 

Fifteen states have already introduced Personhood ballot initiatives and/or legislation -- laws that define a fertilized egg as a person, possessing all the legal and constitutional attributes and privileges of a living person.  Although the main objective of Personhood legislation is to limit a woman’s right to choose (under Personhood laws, an abortion is akin to murder), what many do not understand is that all other reproductive choices and fertility treatments could be affected as well.  The American Society of Reproductive Medicine (“ASRM”) has stated that such legislation may “deem the cryopreservation [freezing] and/or destruction of embryos created as part of the process to treat infertility illegal. [Personhood legislation] would possibly prevent doctors from providing necessary and often life-saving medical procedures to women experiencing miscarriage or ectopic pregnancy. Personhood measures are a dangerous intrusion of criminal law into the provision of medical care. They unduly restrict the doctor-patient relationship while jeopardizing women’s rights, and also literally their lives.”

The Centers for Disease Control and Prevention estimates there are 7.4 million people affected by infertility in the U.S. (Centers for Disease Control and Prevention, National Center for Health Statistics, “National Survey of Family Growth,” (2002)).  Many of these individuals and couples will pursue in vitro fertilization (IVF).  Sometimes more embryos are created than can be safely transferred to the intended mother or surrogate.  These extra fertilized eggs are often cryopreserved (frozen) and can be used by the intended parents in the future should the initial transfer not result in pregnancy, or should a miscarriage occur.  Under the Personhood legislation each frozen embryo will be considered a person by law, with all of the rights and protections afforded to all human beings. What does this mean for IVF treatments or frozen embryos?  What if cryopreserved embryos do not survive the thawing process?  Has the laboratory technician committed a crime?  If an embryo is purposefully transferred to a woman with a uterine abnormality, and she later miscarries, has she committed some form of manslaughter or murder?  Is the physician who performed the IVF with knowledge of her medical condition a co-conspirator?  There are also other issues raised by Personhood legislation unrelated to the specific act of reproduction.  Must a woman report her miscarriage to the state?  Should the state issue a ‘death certificate’ for a transferred embryo that does not result in a pregnancy?  If an embryo is a person, should it be counted in the United States census?  Should a family be entitled to claim embryos as dependents on their taxes?  Although these examples may seem extreme, how will the government decide which rights, liberties and protections are afforded to embryos?

It is anticipated that Personhood laws would produce so many legal uncertainties about the status of embryos that it would be difficult or impossible for reproductive endocrinologists to treat infertility patients using long-established assisted reproductive treatments.

“The effect of Personhood Legislation would be to threaten a medical treatment that has, since being pioneered in 1978, brought some four million babies to loving infertile couples around the world. At a minimum, it would force changes in the practice of reproductive medicine (e.g., limitations on the number of eggs that may be fertilized) that are not in patients’ best interests and constitute inferior medical practice. Whether these results are intended or unintended is not clear; however, legislation proposed in other states such as Georgia, Arizona, Kansas, and New Jersey was designed explicitly to regulate embryos in the context of medical treatment for infertility, so such an intent is not unheard of.” (Resolve’s Policy on Personhood Legislation, revised April 2012)

The Democratic Party Platform supports a woman’s right to control their reproductive choices and a woman's right to make decisions regarding her pregnancy.  http://www.democrats.org/democratic-national-platform.  The Republican Party Platform states:  “We assert the sanctity of human life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed." (www.gop.com/2012-republican-platform).  Vice Presidential candidate, Paul Ryan, cosponsored strikingly similar legislation to the Personhood bills.  This legislation, entitled the Sanctity of Life Act, provides that “the life of each human being begins with human fertilization…irrespective of…stage of biological development…at which time every human being shall have all the legal and constitutional attributes and privileges of personhood.” (HR 212).  This legislation may have been meant to attempt to criminalize abortion, but could it also lead to unintended affects for fertility treatment? 

Although the proposed state and federal Personhood legislation has thus far failed to become law in any state or at the federal level, the outcome of this election could ease the path for future success of these laws.  And, no matter what your position on abortion, Personhood legislation could impact individuals and couples struggling to conceive.  So make sure you know where your local candidates stand on this issue.  You need not be in favor of abortion to support a woman’s right to access fertility treatment.  I urge you to vote in this Presidential election – but vote with knowledge about how this election (whether intentional or not) could affect your reproductive choices.