Next week, voters in Colorado and North Dakota will take to the polls to vote on amendments that would give legal rights to zygotes, embryos, and fetuses, also known as “personhood” laws. Measure 1 in North Dakota seeks to recognize and protect the “inalienable right to life of every human being at any stage of development”; meanwhile, Colorado’s Amendment 67 asks voters to add “unborn human beings” to the state’s criminal code. Though Personhood USA, which is backing Amendment 67, may define “personhood” as the “cultural and legal recognition of the equal and unalienable rights of human beings,” make no mistake: The personhood movement is an attempt to undermine the legality of reproductive choice in America. This doesn’t just put abortion in danger; it also leaves some of the people wanting children the most—the infertility community—in the dust.
My own journey to motherhood was a textbook case of in vitro fertilization (IVF). Five years ago, I was diagnosed with premature ovarian failure, a sort of “end of the line” infertility diagnosis. In order to get pregnant, my doctor told us, I had a single choice: IVF with donor eggs, as my own were virtually nonexistent at the age of 26. While I grieved the loss of having a child with my own genes, I found hope and healing in the possibility of experiencing pregnancy and birth. Without IVF, we wouldn’t have the family we have right now.
I still have the grainy black-and-white photograph, taken just before my embryo transfer, of our two three-day-old, ten-cell blastocysts. I often wonder which of those two nearly transparent spheres became the charming, talkative toddler I now chase after.
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Even though I know that my son and one of those two balls of cells are the same, however, at no point when I look at that photo do I see a family portrait, much less a person. At that stage of human development, they were merely dividing tissue to me: They had no names, no genders, no sentience. But proponents of the personhood movement, who would legally define life as beginning at conception, evidently see a completely different picture. And it’s one that could make it much more difficult, if not impossible, for the as many as 7.4 million American women with infertility to create a family of their choice by seeking the treatments they need.
Here’s a basic primer of how IVF works: A woman’s ovaries are stimulated to produce multiple eggs. She may be the prospective parent, an egg donor, or even a gestational carrier who both donates her eggs and carries the pregnancy. Doctors then retrieve the eggs and fertilize them in the lab with the prospective father’s sperm from a provided sample. Three to five days after fertilization, medical professionals transfer one to three tiny embryos into the recipient uterus. Any excess embryos—on average, there are about 15—are often frozen and kept in cryopreserved storage until patients use them or discard them.
If personhood amendments were to pass, doctors would presumably have to treat all those embryos, or even the fertilized eggs, as if they had human rights. This, care providers point out, has no basis in medical fact—and it could severely hamper their ability to do their jobs safely and effectively.
“Among the many, many problems with these so-called personhood measures is they simply do not in any way reflect scientific reality,” Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine (ASRM), told Rewire. “For physicians providing infertility care, the disconnect between the legal language and actual medicine is very dangerous. The reality is that most fertilized eggs will not develop into babies.”
Tipton fears that Amendment 67 and Measure 1, among other personhood measures, would place a question of potential murder on physicians trying to give their patients the best care possible. About those extra embryos, for example, he wondered, “Will doctors be forced to transfer them into their female patients anyway? Do they provide the best care for their patient, or do they risk facing a homicide charge?”
When it comes to the matters of how many embryos to transfer at once, there is no “one size fits all” recommendation. However, current ASRM guidelines call for the use of elective single embryo transfer (eSET) whenever possible in most favorable conditions, such as if it is the patient’s first IVF cycle or the embryos are of good quality. For most women younger than 37, ASRM recommends that doctors transfer a maximum of two blastocysts at once; for patients older than 38, it recommends no more than three. ASRM and the Society for Assisted Reproductive Technology (SART) specifically set up these guidelines to reduce the number of potentially dangerous multiple births resulting from IVF, including twins, triplets, quads, and higher-order multiples.
In our case, our egg donor—with whom my husband and I are close friends—provided us with 20 eggs then fertilized with my husband’s sperm. Six of those developed into embryos. My doctor transferred two embryos into my uterus; one implanted. Currently, we have four high-grade embryos “on ice”—and no hard-and-fast decisions yet on what to do with them.
Had personhood been in effect at the time of my IVF cycle, however, I wouldn’t have had the option to transfer only two embryos. Our donor would have had to understand that any of the extras couldn’t legally be discarded. We, as prospective parents, would be left with only two options: Donate the remaining embryos to another couple trying to conceive, or transfer them all to my uterus.
The first option, explains New Hampshire reproductive and family lawyer Catherine Tucker, could dissuade known donors from trying to give an altruistic gift to a close friend. “Your known donor might be willing to donate only to you and not to strangers,” Tucker noted. “So [she] might refuse to donate to you simply because she’s not comfortable with her genetic material going to other prospective parents in the event you cannot use all the embryos yourself.”
With our donor, after careful consideration, discussion, and legal negotiation, we collectively decided that any excess embryos would be ours, and ours alone, to use for future cycles, discard, or donate to scientific study as we saw fit—but not to another recipient couple. Our friend made her generous offer to be an egg donor for us, and for no other third parties. Even in cases where the donor is open to the idea of embryos going elsewhere, though, finding other recipients would be a logistical nightmare, especially with no way to guarantee any excess embryos at all.
On the other hand, transferring all of the embryos could put patients’ safety at risk. Assuming my same 50 percent implantation rate, for example, if I had transferred all six embryos, I could have had a triplet pregnancy—and that’s outside of the risk of any of those embryos splitting into multiples of their own. These types of high-order pregnancies put the woman and the fetuses at risk for serious complications, including preeclampsia, gestational diabetes, premature birth, miscarriage, and even maternal death. This is to say nothing of the costs of raising an unexpected additional child, which can be an immense burden on infertility patients who have already spent thousands of dollars on their treatments.
Personhood laws could also cause a number of other legal ambiguities for those involved in the IVF process. Barbara Collura, executive director for RESOLVE: The National Infertility Association, pointed out to Rewire that the vague language of the proposed amendments generates myriad potential gray areas that voters likely haven’t considered.
“What about the infertility patient scheduled for her IVF procedure on November 5?” she pointed out. For that patient, Collura noted, it would be unclear as to whether she had a right to refuse any of her embryos, or if she must cancel her treatment entirely—which would still leave any fertilized eggs retrieved and created before the ballot vote in legal limbo.
Collura also brought up the issue of unused embryos awaiting possible transfer. She raised the questions, “If Amendment 67 and Measure 1 pass on November 4, what will happen to embryos that are currently frozen and in storage in those states? Will infertility patients be able to cross state lines now with these so-called ‘pre-born people?’” After all, if embryos do not survive the trip, their transporters could be held responsible.
Tucker, too, noted that such an action might leave individuals liable to prosecution. “Under personhood laws, IVF physicians and lab personnel who handle the embryos could face criminal punishment should anything happen to these embryos,” she noted in an email to Rewire.
As a result of potential ramifications like these, personhood laws would have devastating effects for reproductive facilities. Reproductive endocrinologists in North Dakota have warned that Measure 1 would effectively shut down the sole fertility clinic in the state, rendering them unable to treat their patients. Amendment 67 would also either shutter Colorado fertility clinics entirely or severely limit their doctors’ abilities to practice recommended standards of care. Although Personhood USA claims that the amendments would not affect IVF, the very nature of the treatment means that some fertilized eggs or embryos are going to be discarded—which is blatantly at odds with the provisions outlined in personhood laws.
Ultimately, personhood initiatives could have a chilling effect on the entire practice of reproductive medicine. While the average person “might think that an IVF laboratory shutting down on account of a personhood law sounds far-fetched,” noted Tucker, “the bottom line is that personhood laws will end the ability of prospective parents to form their families with the help of IVF, egg donation, and even gestational surrogacy.” When legal rights are granted to ten-cell balls of tissue, every aspect of the handling, care, diagnostics, and treatment of those embryos must be taken into consideration. Personhood rights would upend decades of improving standards of best practice.
Personhood proponents argue that they are “working to respect the God-given right to life” and “protecting every child by love and by law.” But for people like me in the infertility community—who want nothing more than to have children of our own—personhood would actually prevent us from having those children in the first place.
I’ll never forget what our friend said when she made her incredible offer to donate her eggs to me and my husband: “I think everyone who wants to have a family should be able to. If I can give you that chance, I want to help because you two deserve to be parents.” If personhood proponents had their way, we’d never have had that chance at all.