North Dakota HB 1450 Bill Analysis

Updated March 14, 2011

We wish to explain exactly how North Dakota's personhood bill, HB 1450, an amendment to ND’s murder statutes, would interfere with in vitro fertilization (IVF), a medical treatment for the disease of infertility that has been used for more than 30 years to help couples build their families and have babies. 

HB 1450 does not exempt those practicing IVF from being prosecuted for murder.  Indeed, it does the exact opposite:  HB 1450 makes explicit that any actions during IVF that cause a microscopic embryo to stop developing (in personhood parlance "cause death") can lead to the doctor, embryologist, or even the patient being prosecuted for crimes that are of utmost seriousness:  murder, manslaughter, or negligent homicide.  These crimes are punishable by imprisonment from 5 years to life.

HB 1450 would criminalize the practice of a pro-family, life-giving medical treatment and RESOLVE opposes it.

ND's personhood bill operates by changing the definition of "human beings" for the purposes of ND's murder statutes.  It expands the definition of human being to include "every stage of development," which is the personhood movement's way of saying when the microscopic sperm fertilizes the egg.  Thus, it means that a one-celled microscopic embryo, from the very moment of fertilization, is a human being whose cessation or death will result in a murder prosecution.

HB 1450 goes on to state a purported exemption:  that the new murder statutes would not apply to "[t]he creation of a human being through in vitro fertilization, but in no case does this section excuse or justify causing the death of a human being."  It is critical to look at the two parts of this exemption.

First, the murder statutes do not apply to "[t]he creation of a human being through in vitro fertilization...."  That is actually obvious.  "Creating" a human being could never be "murder."  So that part of the exemption language does not actually mean anything.

It is the second part of the exemption that contains the problem.  It states: "...but in no case does this section excuse or justify causing the death of a human being."  This means the fact that one is performing or receiving the medical treatment of IVF will not prevent a murder prosecution if one or more microscopic embryos are caused to stop developing.

This is not about protecting developing fetuses or born children, for IVF is over long before those stages are reached.  It is about imprisonment for murder over the cessation of microscopic embryos in a Petri dish.

HB 1450 would thus make well-settled, routine medical procedures extremely risky for a doctor to perform or for an infertility patient to undergo.  It would raise so many questions about which medical treatments are acceptable and which would land a doctor or patient in prison that fertility treatment would be seriously compromised - if any infertility specialists even remained in the state.  Here are some of the questions a couple with infertility may face: 

What if one or more of my embryos stops developing in the lab?*  Under HB 1450, that occurrence could trigger a murder investigation to see if there were intent, recklessness, or negligence involved.  If my embryos fail to develop, should I report my doctors with allegations of murder or manslaughter?

What if we, with our embryologist and doctor, decide to transfer our embryos at the blastocyst (five day) stage instead of three day?  During those two days, if some embryos stop dividing, will someone be held criminally liable because we did not transfer at day three? 

What if I transfer two embryos and they do not implant and I do not become pregnant?  Will I be subjected to investigation for something I may have done to prevent implantation?

Indeed, if I have a uterine problem like a fibroid, will I be prevented from attempting an embryo transfer because my uterus is not the most hospitable environment and arguably places an embryo at risk?

What about any remaining embryos after we complete our family?  Under this legislation, cryopreservation would be risky to perform because, ordinarily, one is prohibited from freezing a human being and it carries a risk that the microscopic embryo will not thaw successfully.  Would that risk be considered reckless (i.e., manslaughter)?  Could I cryopreserve for future family building or not - or would I have to transfer all embryos, even if there are three, four, five, or more?**

What if I currently have cryopreserved embryos but do not need them to have any more children?  Will disposing of the remaining embryos be considered criminal?  What if we do not want to continue paying for indefinite cryopreservation?  Will the state assume the responsibility for (and cost of) these embryos? 

Under HB 1450, doctors will face a threat of imprisonment for helping men and women have babies.  Will doctors even continue practicing reproductive medicine in North Dakota under this threat?  We do not think so.  Certainly no new reproductive specialist would choose to come to this state.  And that means that the more than 100,000 men and women in North Dakota who struggle with the disease of infertility would have no effective treatment available to them.

We hope this explains step by step how HB 1450 would restrict and probably stop the medical treatment of IVF as it is currently practiced.  The North Dakota legislation is unique and notable in that it places its personhood legislation in the murder statutes.

HB 1450 would prevent North Dakota couples from being able to have children.  This result is anti-family, and we urge you to oppose HB 1450. Send a letter today!

Footnotes:

* Human reproduction is medically known to be inefficient, with approximately 75% of embryos containing chromosomal defects that prevent them from developing into a fetus or child.  Bavister, B.D. and Brenner, C.A., “Nonhuman primates as models for reproductive aging,” in Handbook of Models for Human Aging, (Elsevier, 2006), p. 470.  Thus, embryos frequently stop developing inside a woman's body during regular reproduction and in the lab during IVF medical treatment. 

** Under "Italian-style" IVF, just a few eggs were fertilized and all embryos had to be transferred, but in 2009 Italy ruled that its law requiring this practice was unconstitutional.  The practice had led to lower pregnancy rates and higher multiple birth rates, an unfortunate and costly result.

Updated February 24, 2011

The first thing to know about HB 1450 is that it confers personhood on microscopic embryos for purposes of murder prosecutions. 

The entire personhood bill is an amendment to the statutes that define (1) murder, (2) manslaughter, and (3) negligent homicide.  The bill would redefine “human being” to include a “member of the species homo sapiens at every stage of development,” which means sometime during the fertilization process where the sperm and egg meet. Causing the death of a "human being," even if the "human being" in question is a microscopic embryo, can be prosecuted as murder, with prison sentences ranging from 5 years to life imprisonment without parole.

So, at its foundation, this personhood law is about putting people in prison as murderers, including physicians who perform medical treatments to help people have babies.

Infertility patients of North Dakota should have no illusion that they will be able to obtain medical treatment for infertility if this bill passes.  It seems certain that fertility doctors will decide not to practice medicine under the constant threat of being arrested for murder and spending the rest of their lives in prison, and will move and serve patients in other states.

Some lawmakers and articles have claimed that fertility treatment and in vitro fertilization are protected in HB 1450.  This is simply not true.

In fact, IVF is specifically declared not to “excuse or justify causing the death of a human being” [including microscopic embryos]. 

Thus, HB 1450 plainly allows doctors and laboratory embryologists to be imprisoned for treating patients with IVF if an embryo stops developing.

In addition, it would be extremely risky to cryopreserve (freeze) embryos not needed for immediate treatment, because that may be deemed to pose too much risk of causing embryo death.