Here Is Exactly How Personhood Measures Would Outlaw IVF

Legally defining when life begins threatens standards of care for thousands of infertility patients

Tomorrow, November 4, voters in Colorado and North Dakota will take to the polls to decide on two key ‘personhood’ ballot initiatives that seek to legally codify when life begins. If passed, Amendment 67 in Colorado would add the term “unborn human beings” to the state’s criminal code while North Dakota’s Measure 1 would recognize and protect the “inalienable right to life of every human being at any stage of development.”

If personhood passes, fertility treatments including in vitro fertilization (IVF) could be caught in the crosshairs of legal ambiguity and criminal liability forcing many fertility doctors to abandon the practice entirely.

While personhood proponents claim that IVF wouldn’t be banned outright in these states, their claims aren’t supported by the science of assisted reproductive technology. Kristen Cain, MD, a reproductive endocrinologist based in Fargo, explains exactly how personhood measures like North Dakota Measure 1 would effectively end the practice of IVF in her state.

By granting embryos the same legal rights as people, performing any act that potentially jeopardizes their safety could be seen as a criminal offense under these vaguely worded personhood measures. These measures fail to take into account several standard but critical components of care with IVF that would be otherwise impossible to perform under personhood laws.

Unraveling the Practice of IVF

She describes how IVF works: During an IVF cycle, a woman’s ovaries are stimulated with medication to produce multiple eggs. Once harvested, the eggs are fertilized with sperm in a petri dish. These fertilized eggs are then allowed to grow into embryos. After three to five days, an average of two or three of these fertilized eggs are transplanted into the woman’s uterus. Throughout this process, some embryos simply won’t make it to the next stage, largely due to chromosomal abnormalities that halt embryo development.

An 8-cell blastocyst, via Wikipedia Commons

Cain tells her patients that “an embryo’s DNA is like a book of instructions for making a baby.” Cain explains why some embryos are more suitable for transfer than others and why some IVF cycles fail: “It’s as if the next page is missing and the embryo doesn’t know what to do next to in order to keep growing. It doesn’t know how to make a heart, a brain, a spinal column, or even how to implant and achieve pregnancy.”

According to Cain, only 10 percent of eggs during IVF are genetically normal to proceed to fertilization, where fertilization rates with IVF approach 50 percent. Chromosomal abnormalities are common, even in healthy fertile women. “This is why women don’t get pregnant every month with unprotected sex,” Cain adds. Embryos that are chromosomally abnormal and have virtually no chance of making it to full term — much less achieving pregnancy in the first place – are discarded.

Under personhood, doctors wouldn’t have the option to discard any embryos with abnormalities or defects; worse still, patients may not have the right to refuse the transfer of all their embryos at once, placing patients at risk for multiple births.

Jeopardizing Patient Safety

The American Society for Reproductive Medicine (ASRM) and the Society for Reproductive Technology (SART) created embryo transfer guidelines recommending caps on the number of embryos (at most two or three embryos at once) transferred specifically to mitigate the possibility of and risks associated with higher-order multiple births.

Proponents of personhood argue the simplest way to avoid criminal liability for discarding embryos is to create fewer embryos in the first place by retrieving fewer eggs from the patient. This is problematic from a patient safety perspective, Cain notes.

An embryo transfer room, via Wikimedia Commons

“It’s just not a feasible practice,” she says. “We try to retrieve as many eggs as we can get to reduce the patient’s risk for ovarian hyperstimulation syndrome (OHSS).” OHSS is a potentially life-threatening condition resulting when a woman’s ovaries produce too many eggs; leaving any eggs within the ovaries during IVF puts a patient at greater risk of developing OHSS. While it is possible to use less medication to stimulate the production of fewer eggs, this drastically reduces efficacy of the IVF procedure itself.

Denying Patients Access to Their Embryos

Whether or not an IVF cycle was successful, cryopreservation of any excess embryos also remains in doubt. Not all frozen embryos survive the thawing process— around 20 percent don’t. If personhood were law, it would be too risky to use those embryos for future cycles in the event that any of them didn’t survive thawing, leaving them in a legal holding pattern with infertility patients unable to access their own embryos.

Even if patients wanted to transfer their frozen embryos to another state where personhood wasn’t law, the legality of moving those embryos from one facility to another is also thrown into question. “Infertility patients transferring embryos out of state could be accused of trafficking humans across state lines,” Cain warns.

A Question of Murder

When asked about whether or not she could continue to practice IVF in North Dakota if Measure 1 were to pass, Cain replied that her clinic – the sole fertility treatment provider in her state — would have to close up shop and move to another state entirely.

“Once we have a fertilized egg and that egg is now considered a person,” Cain argues, “We could be held criminally liable for murder if something happened to that fertilized egg.” She envisions a scenario where it would only take one patient who didn’t get pregnant via IVF to question what happened to her embryos.”

We suddenly go from an accusation of misconduct to murder. We’re not prepared to face a murder conviction every time an embryo dies in culture.”

If Colorado and North Dakota vote personhood into law on Tuesday, there simply isn’t enough legal clarity that IVF as a standard of treatment for infertility patients could continue in either state. Fertility clinics in both states will be forced to close their doors, denying treatment access to thousands of infertility patients.

And while personhood proponents claim to be pro-family, they’d be denying those infertility patients any chance to have families of their own.

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