August, 2008; revised October, 2010, April, 2012
Introduction and Summary
A number of states have proposed legislation that would define human life as beginning at the moment an egg is fertilized. As shorthand, such measures are referred to as so-called “Personhood legislation”.
Personhood legislation can come about in two ways: (a) via a bill in the state legislature, or (b) via a ballot initiative that the citizens vote on. Sometimes the legislation is designed to amend the state’s Constitution to confer constitutional rights on embryos; sometimes the mechanism is a statute that is “on the books.”
The first stand-alone personhood legislation arose in Colorado in the form of a ballot initiative in 2008. This Constitutional amendment would have given all persons, “from the beginning of [their] biological development,” i.e., from the moment of sperm-egg fertilization, inalienable rights, equality of justice, and due process of law protection under the Colorado Constitution. It was rejected by Colorado voters both in November, 2008, and when presented again in November, 2010, by margins of 2 to 1.
Mississippi’s “Initiative 26”, another ballot initiative, gained the most national media attention. In November 2011, the voters of Mississippi were asked to vote for or against the following proposal:
“As used in this Article III of the state constitution, The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.”
Despite polling at 80% popularity about three weeks before the election, the voters of Mississippi ultimately voted down Initiative 26 by a margin of 58-42.
In other states, bills with different language but the same goals have been proposed. Below are examples of the range of linguistic approaches to personhood legislation:
- Georgia, SB 169 (2009): “A living in vitro human embryo is a biological human being who is not the property of any person or entity.”
- Georgia, HB 388 (2009): “…[T]he term ‘child’ shall include a human embryo.”
- South Carolina, S. 450 (2009): “The right to life for each born and preborn human being vests at fertilization.”
- Arizona, SB 1307 (2010): “A person shall not intentionally or knowingly engage in … nontherapeutic research that … results in the injury, death or destruction of an in vitro human embryo.”
- Virginia, HB1 and Oklahoma, SB 1433 (2012): “[T]he term ‘unborn children’… shall include … the offspring of human beings from the moment of conception until birth at every stage of biological development.”
- Oklahoma, HJR 1067 (2012): “[T]he term ‘persons’ … applies to every human being from the beginning of the biological development of that human being…. Only in vitro fertilization and assisted reproduction that kills a person shall be affected by this section.”
RESOLVE has reviewed all of these proposed laws and believes they may seriously impair the ability of citizens with infertility to obtain needed medical treatment. For that reason, RESOLVE opposes Personhood Legislation and urges people who care about infertility to join RESOLVE in defeating these bills.¹
Proponents of the original ballot initiative in Colorado stated that the amendment was “meant to lay a foundation for protection of life at every stage.”² Thus, the objective appears to be creation of a constitutional framework to make abortion and embryonic stem cell research illegal.³ Separate from this objective, however, Personhood legislation 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”). As a result, RESOLVE resolutely opposes Personhood legislation.
Infertility and Medical Basics
Infertility affects at least 10-15 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.4 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.
With Personhood legislation, 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.
Questions raised by Personhood Legislation
Below are examples of the threats to reproductive medicine and to infertility patients if Personhood legislation 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?5 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?
- Would women who have ectopic (tubal) pregnancies after IVF be able to receive life-saving treatment, or would the embryo’s legal rights have to balanced against hers?
- 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 people the rights of disposition over their embryos? Could someone claim the embryos require a disposition other than what the parents want? Could couples and their embryos be adversaries in a legal proceeding? Is this a desirable outcome?
- Will cryopreserved embryos have a right to be transferred to someone’s uterus for birth?
- Not all frozen embryos thaw successfully. Could embryo freezing be prohibited as too risky?
- If embryo freezing is prohibited, what will happen to women who experience hyper-stimulation during an IVF cycle and for whom the medical recommendation is to freeze and not transfer the embryos right away? Will they have to transfer the embryos and risk harm to their health?
- 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?
- May women who live in states where personhood laws pass travel to other states for IVF, or would their embryos still be restricted by the law of their home state, such that they could not obtain treatment elsewhere? Would they be forbidden to move any currently frozen embryos to another state to continue their treatment?
- If infertility patients in personhood states cannot afford to live in another state during treatment, will they simply have to forego the dream of having a family?
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 position is consistent with that of other experts such as the American Society for Reproductive Medicine, the Society for Assisted Reproductive Technology, the American Academy of ART Attorneys, and the American Congress of Obstetricians and Gynecologists, Colorado Chapter.6 The Denver City Council in 2010 approved a proclamation opposing Amendment 62, stating:
“Amendment 62 would codify the beliefs of one religious tradition in the Colorado State Constitution and thereby end or severely limit many standard medical practices in women’s health care, including … infertility treatment….”7
The consequences of Personhood Legislation 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. After due consideration, we at RESOLVE conclude we cannot support these laws and, on behalf of the 7.3 million men and women who are striving to build a family in the face of infertility, we commit to oppose Personhood Legislation.
(1) The personhood bills in these and other states take a number of different approaches. In South Carolina, the proposed law would have vested Constitutional rights in eggs at the moment of fertilization. Virginia and Oklahoma in their failed attempts in 2012 adopted personhood language from the preamble to a Missouri statute that was at issue in the Supreme Court case, Webster v. Reproductive Health Services. In New Jersey, Arizona, Kansas, and Georgia, the proposed laws were drafted specifically to regulate embryos used in IVF. In Montana, pro-life groups were unable to collect enough signatures to put a Colorado-like personhood initiative on the ballot in 2008; Florida was similarly unsuccessful in 2012. Personhood USA, the primary proponent of personhood legislation nationwide, did gather sufficient signatures to place a Personhood Amendment on Mississippi’s ballot in November, 2011 ballot (MS “Initiative 26”). Despite predictions of easy passage, the citizens of Mississippi ultimately voted Initiative 26 down, 58 to 42%.
(2) Colorado for Equal Rights, Fact Sheet
(3) Surdin, Ashley. “Colorado Voters Will Be Asked When ‘Personhood’ Begins.” The Washington Post, July 13, 2008; p. A04.
(4) Centers for Disease Control and Prevention, National Center for Health Statistics, “National Survey of Family Growth,” (2002).
(5) 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”
(7) Osher, Christopher. Denver Council Opposed “Personhood Amendment.” The Denver Post, 2010: http://www.denverpost.com/news/ci_16372596