Policy of RESOLVE: The National Infertility Association on “Personhood Legislation”
August 7, 2008
Introduction and Summary
Legislation has recently been proposed in a number of states that would define human life as beginning at the moment an egg is fertilized. In one state, Colorado, an initiative to amend the state Constitution to adopt this definition will appear on the ballot this November, 2008 (the “Personhood Amendment”). Thus, voters will vote for or against amending the state Constitution’s definition of human life so that the fertilization of a human egg would be defined as the beginning of life and, legally, as the point at which constitutional rights apply. It would give “any human being from the moment of fertilization” inalienable rights, equality of justice, and due process of law protection under the Colorado Constitution.1
RESOLVE has reviewed this proposed amendment and believes it may seriously impair the ability of Colorado citizens with infertility to obtain needed medical treatment. For that reason, RESOLVE opposes the Colorado Personhood Amendment and urges Colorado voters to vote “no” on Amendment No. 48.
Similar “personhood” legislative initiatives recently have been or are being pursued in a number of states including Montana, Virginia, South Carolina, Mississippi, Michigan, New Jersey, Louisiana, Georgia, West Virginia, and Indiana.2 Proponents of the ballot initiative in Colorado state that the amendment is “meant to lay a foundation for protection of life at every stage.”3 Thus, the objective appears to be creation of a constitutional framework to make abortion and embryonic stem cell research illegal.4 Separate from this objective, however, the Personhood Amendment would produce so many legal uncertainties about the status of embryos that RESOLVE anticipates it would be difficult or impossible for reproductive endocrinologists to treat infertility patients using long-established assisted reproductive treatments (“ART”) within the State of Colorado. As a result, RESOLVE opposes the Colorado Personhood Amendment, as well as similar legislation and amendments in other states.
Infertility and Medical Basics
Infertility affects at least 10 percent of couples who desire pregnancy. The Centers for Disease Control and Prevention estimates there are 7.3 million infertile couples in the U.S.5 For a number of those with infertility, ART including in vitro fertilization (“IVF”), a treatment pioneered in the late 1970s, is necessary. In IVF, multiple eggs are fertilized in a lab to increase the likelihood of pregnancy. The microscopic fertilized eggs develop for three to five days, and then one or more are transferred to the woman’s uterus in the hope one will implant and develop to birth. Sometimes extra fertilized eggs remain after a couple becomes pregnant, which is a benefit as many infertile couples require more than one attempt at implantation before a pregnancy occurs; many suffer from miscarriages; and many infertile couples plan on having additional children. Thus, doctors often cryopreserve (freeze) the remaining microscopic embryos.
Under the Colorado Personhood Amendment, however, the legality of these effective pro-pregnancy fertility treatments would be called into question: if microscopic fertilized eggs/embryos are full humans, anything that puts an embryo at risk could be a criminal violation, even if its goal is the undeniable social good of helping someone have a baby. It is unclear at this time precisely which ART procedures would be deemed illegal because of their possible risks to an embryo, but RESOLVE believes the legal uncertainties stemming from the proposed amendment would make it difficult or impossible for reproductive endocrinologists in Colorado to treat patients at all using ART. Thus, the “Personhood Amendment” would prevent couples with infertility from being able to have families.
Questions raised by the “Personhood Amendment”
Below are examples of the threats to reproductive medicine and to infertility patients if the “Personhood Amendment” or similar laws were to pass.
If one or more microscopic embryos from an IVF cycle do not develop normally in the lab or fail to result in live births after transfer (all natural events), could the physician, lab, and/or patient be criminally liable?
Would non-IVF treatments such as simple inseminations be threatened because they carry a risk of miscarriage?6 Would clinics with high miscarriage rates after inseminations be at risk for criminal liability? Could the miscarrying women be subject to criminal charges?
Would women with fibroids or other uterine abnormalities be forbidden to try to have babies because the problems with their uteruses reduce the chances that an embryo will successfully implant after IVF or an insemination?
What will be the ramifications for fertilized eggs that have been created in the course of fertility treatment but have not been transferred to a woman’s uterus? Who will have legal responsibility for them?
Will these laws take from parents the rights of disposition over their embryos? Could embryos and their parents be adversaries in a legal proceeding? Is this a desirable outcome?
Not all frozen embryos survive the thaw process. Could embryo freezing be prohibited as too risky?
Will patients be prevented from donating their frozen embryos to research after they complete infertility treatments?
Will patients’ medical records be subpoenaed to ensure that no one violated the embryos’ constitutionally guaranteed right to life?
If a Colorado woman travels to another state for IVF, would her eggs still be defined by Colorado law such that doctors in no other states would offer her treatment? Would she be forbidden to move any currently frozen embryos to another state to continue her treatment?
If infertility patients in Colorado cannot afford to live in another state during treatment, will they simply have to forego the dream of having a family?
Conclusion
RESOLVE emphasizes that the proposed Colorado personhood initiative contains no exceptions to preserve fertility treatment or to protect hopeful parents in the situations listed above. Nor does it include explanatory language that would direct lawmakers, when crafting implementing legislation, to carve out exceptions for reproductive health or infertility treatment. Thus, the effect of the Personhood Amendment would be to threaten in Colorado a medical treatment that has, since being pioneered in 1978, brought over two 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) which 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 and New Jersey is designed explicitly to regulate embryos in the context of medical treatment for infertility, so such an intent is not unheard of.
RESOLVE opposes the Colorado personhood ballot initiative and similar legislative and ballot initiatives in other states. RESOLVE’s position is consistent with the opinion expressed in the Executive Statement of the Colorado Gynecological-Obstetrical Society. The consequences of the proposed amendment represent such an obstacle to the practice of reproductive endocrinology that valuable and effective infertility treatments such as in vitro fertilization might no longer be available to patients.
1 The “Personhood Amendment” would alter Article II of the Colorado Constitution as follows (new language added in italics):
“Article II, Section 3. Inalienable Rights. All persons, including any human beings from the moment of fertilization, have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.
“Article II, Section 6. Equality of Justice. Courts of justice shall be open to every person, including any human being from the moment of fertilization, and a speedy remedy afforded for every injury to person, including any human being from the moment of fertilization, property or character; and right and justice should be administered without sale, denial or delay.
“Article II, Section 25. Due Process of Law. No person, including any human being from the moment of fertilization, shall be deprived of life, liberty or property, without due process of law.”
2 The personhood bills in these states take a number of different approaches. In Virginia and South Carolina, the proposed laws would vest Constitutional rights in eggs at the moment of fertilization. In New Jersey and Georgia, the proposed laws were drafted specifically to regulate embryos used in IVF. In Louisiana, a 1986 law gives each fertilized ovum (egg) legal rights stating, in Section 124 of the law, “the in vitro fertilized human ovum shall be given an identification by the medical facility…which entitles such ovum to sue or be sued.” In Montana, pro-life groups were unable to collect enough signatures to put a Colorado-like personhood initiative on the ballot in 2008.
3 Colorado for Equal Rights, Fact Sheet at http://www.coloradoforequalrights.com/files/cer_info_sheet.pdf
4 Surdin, Ashley. “Colorado Voters Will Be Asked When 'Personhood' Begins.” The Washington Post, July 13, 2008; p. A04.
5 Centers for Disease Control and Prevention, National Center for Health Statistics, “National Survey of Family Growth,” (2002).
6 Note that even without fertility treatment, as many as 50% of all fertilized eggs never fully implant; and 10% to 50% of all pregnancies end in miscarriage. The U.S. National Library of Medicine and the National Institutes of Health, “Miscarriage,” Medline Plus at http://www.nlm.nih.gov/medlineplus/ency/article/001488.htm; The March of Dimes, “From Hurt to Healing: Dealing with the Loss of a Baby,” at http://www.marchofdimes.com/pnhec/188_1086.asp.
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