Many people are worried that their right to use in vitro fertilization (IVF) or a surrogate to grow their family could be in jeopardy. That’s because current legislation pending in the US Congress, as well as new laws in several states around the country could affect the right to utilize reproductive technology.
In addition, the US Supreme Court will soon revisit Roe v. Wade, which could likely impact the future of abortion rights. A leaked draft opinion by the conservative majority on the court indicates that it will overturn the 1973 landmark ruling. That would mean the states would determine whether or not abortion will remain legal. If Roe v. Wade is overturned, 13 states that have “trigger laws” in place that would immediately ban abortions. Fourteen states could adopt bans on abortion, at 22 weeks or earlier – before fetal viability.
There are two bills in committee in the US House of Representatives that would essentially give legal rights to a fertilized egg, known as “Personhood” legislation. HR 681, “Life at Conception Act”, is sponsored by Congressman Alex Mooney (R-W.Va.) and co-sponsored by 59 Republicans and 1 Democrat (Rep. Collin Peterson of Minnesota).
The same bill was introduced in the Senate as S231 by Senator Paul Rand (R-Ky.), with 9 Republican co-sponsors.
A similar bill, HR 586, the “Sanctity of Human Life Act”, was introduced by Rep. Jody Hice (R-Ga.). It’s co-sponsored by 29 other Republican men from 14 states and the list of co-sponsors continues to grow.
There are currently 10 states – Alabama, Arkansas, Indiana, Iowa, Kansas, South Carolina, Missouri, Washington, Tennessee and Texas – with Personhood legislation pending.
This type of legislation is nothing new and has been introduced in some form every year since the mid-1990’s. In January of 2017, Mike Pence became the highest ranking US official to ever speak at the March for Life rally in Washington.
“There is strong support for the introduction of pro-life legislation,” Los Angeles Reproductive Law Attorney Lori Meyers says, “There is a feeling of momentum … that has buoyed support for the introduction of bills with this kind of broad, strong and sweeping language, which I don’t think most people are necessarily aware of, or understand the complexities of.”
“There are unintended effects that could … tremendously impact the services performed at IVF clinics around the country.”
Congressman Jody Hice sent TalkingFertility.com this statement: “Today, with the right to life under attack, now more than ever before, we must stand up as advocates for the unborn. Our culture must affirm the value of the weak and vulnerable in our society, beginning with our children. With that in mind, I introduced the Sanctity of Human Life Act, which rightly defines life as beginning at conception.”
Melissa Brisman, New Jersey Reproductive Law Attorney: “This proposed law flies in the face of the United States Constitution. Representative Hice’s diatribe is nothing more than an attempt to derail reproductive freedoms, curtail abortion and impact in vitro fertilization. While the law would have on obvious effect on abortion and a woman’s right to choose, there are unintended effects that could be far reaching and could tremendously impact the services performed at IVF clinics around the country.”
Those who support the bill say it’s a declaration, not a regulation and does not mention or prohibit IVF or any other assisted reproductive technology, it simply states that life begins at conception. Even so, many in the fertility community are very concerned.
Dr. Andrew Toledo, a Fertility Specialist in Atlanta, was part of a coalition of physicians who fought 2009 Georgia state legislation which intended to recognize and give legal human rights to embryos. “For these pro-life politicians, this is the way to eliminate abortion and Roe v. Wade. However, I don’t think the majority of politicians realize the impact it will have on the reproductive field. The process of in vitro fertilization creates embryos. 
Doctors can’t know how many eggs will fertilize. If I have ten eggs, will all fertilize, or just two? We don’t know. Additionally, not all of the embryos created will be genetically normal. So, would this legislation force a couple to implant all embryos, whether or not they are normal, because discarding them would be illegal?”
Fertility Specialist Dr. Eli Reshef has been an active part of the fight against “Life at Conception” legislation in his state of Oklahoma. While Oklahoma does not support Surrogacy and has numerous laws restricting access to abortion, previous attempts at passing Personhood legislation have failed. “It creates a significant risk to family-building,” Reshef says. “Giving embryos the same rights as adults creates various situations that place the practice of IVF at risk. If a lab technician accidentally drops a dish with embryos, they may be prosecuted for manslaughter of “persons”. Which IVF practice, in its right mind, would be willing to provide services if they entail risks of legal prosecution? What about ectopic pregnancies that are viable and place the pregnant person’s health at risk, yet surgical or medical intervention may be construed as killing a ‘person’?”
Attorney Lori Meyers says the proposed legislation would also impact surrogacy in states where it’s legal: “We may be unable to put directed sections in our legal contracts for abortion or selective reduction as the unborn fetus would have rights. Currently, if a surrogate’s life is ever threatened, her life comes first and she decides th
e outcome of the pregnancy. In the event an abnormality is detected, the Intended Parents have the right to determine the outcome of the pregnancy, as well as to make selective reduction decisions in the event of multiples, or triplets, or more, which is considered a very high-risk pregnancy, endangering the lives of the fetuses and surrogate. It may put lawyers in the position of having to eliminate these sections and the rights of Intended Parents completely, causing them to lose control of the outcome of the pregnancy.”
National organizations like RESOLVE The National Infertility Association, Center for Reproductive Rights, Society for Assisted Reproductive Technology and the American Society for Reproductive Medicine all have a long history of lobbying against Personhood legislation on the Federal and State levels.
Barbara Collura, President and CEO of RESOLVE, says: “Since 2008, more than 26 states have introduced Personhood bills or ballot initiatives. Personhood is anti-family, and it negatively impacts the medical treatments people need who are struggling to build their family. Our community needs to show up to ensure these bills and ballot initiatives don’t pass.”
“Obstetricians, gynecologists and fertility specialists need to work together to make their voice known to legislators, because they will listen to whoever is talking,” Dr. Toledo says. “It all starts with education – educating people who would be affected by this legislation and the Congressmen who represent them.”
“I’m genuinely worried about the speed and power of bills that could wipe out fundamental rights before most people are aware of it.” Meyers says, “Decisions involving pregnancy and infertility are highly personal and private. As attorneys in this field, we have to be prepared to fight for the rights of our clients and patients struggling to create their families in a safe and private environment, uncontrolled by governmental influence.”
“It all starts with education – educating people who would be affected.”
“Given the current political climate, I think that the fertility community must assume that Personhood legislation is going to gain traction,” Brisman says. “We cannot sit back and wait for it to be put up for a vote –we must start protesting now.”
“People should be reaching out to their lawmakers to share their perspective and expertise so that the bill does not move,” Collura says. “You never know who will support Personhood, as we have seen pro-life state lawmakers oppose it once they were educated about the far-reaching implications. I like to think that given the chance to tell them the impact, reasonable people will oppose it. So far no Personhood bill or ballot initiative has passed at the state level despite the appearance of overwhelming odds favoring it.”
Dr. Toledo has advice for physicians, particularly in the red states where this type of legislation has come up for debate before: “You need to be organized and have a lobbyist who can get the ear of the party in power, one that has connections and the ability to get inside the offices of the Governor and state legislators.”
Dr. Reshef says it’s also important how you approach the discussion: “Appeal to the sense of decency- most people, including legislators, have some left. Appeal in the name of core values like family-building and the right to raise children. Most people, no matter their political affiliation, understand and support these values.”
Collura encourages people who are concerned about their reproductive rights to use this as an opportunity to get to know their representatives and senators: “Share with them why you are opposed to Personhood. And if you are pro-life, that is a powerful message for them to hear ‘I am pro-life, but against Personhood!’ Your voice can make a big difference.”
We want to know what you think! We’d love to hear about your personal stories regarding limited or challenged reproductive services in your city or state. We’d also like to know if you plan to protest or reach out to your representatives.
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