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Personhood Alabama Responds to a National Infertility Association

Personhood and RESOLVE


by Bill Fortenberry, Personhood Alabama

Picture In 2008, the National Infertility Association (which identifies itself by the name RESOLVE) published a “Policy on ‘Personhood’ Legislation” which includes a series of questions about the effect that personhood legislation would have on in vitro fertilization (IVF) treatments.  RESOLVE’s policy statement leaves every single one of their questions unanswered and then concludes that:

“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.”[1]

Unfortunately, this conclusion was presented without a single attempt to consider the answers to the questions that RESOLVE asked about the effect of personhood legislation.  I fear that this oversight has left RESOLVE’s beneficiaries in a state of confusion by leaving open the possibility that the answers to their questions might not support their conclusion.  I would like to alleviate this confusion by taking the time to answer each of RESOLVE’s questions and allowing the men and women seeking infertility treatment in Alabama to determine for themselves whether RESOLVE’s conclusion is justified.

Here are the questions posed by RESOLVE along with their answers:

1.    QUESTION:  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?

ANSWER:  In Alabama, this question is specifically addressed in our state’s homicide statute which declares that:

“Mistake, or unintentional error on the part of a licensed physician or other licensed health care provider or his or her employee or agent or any person acting on behalf of the patient shall not subject the licensed physician or other licensed health care provider or person acting on behalf of the patient to any criminal liability under this section.”[2]

This means that when the state recognizes the full legal personhood of embryonic children, the death of one of those children can only result in a criminal prosecution if that death is intentional.  The goal of every IVF clinic should be to provide the best possible care for the embryonic children that it is entrusted with.  As long as a clinic strives to fulfill that goal, Alabama law guarantees that it will not have to worry about being prosecuted for any deaths caused by mistake or unintentional error.

2.    QUESTION:  Would non-IVF treatments such as simple inseminations be threatened because they carry a risk of miscarriage? Would clinics with high miscarriage rates after inseminations be at risk for criminal liability? Could the miscarrying women be subject to criminal charges?

ANSWER:  This question carries the same answer as the first.  Unintentional miscarriage is not a crime in Alabama, and will remain so when our state recognizes the full legal personhood of prenatal children.  An intentional miscarriage (such as an abortion) or a miscarriage which results from an action which is otherwise criminal (such as a physical assault upon the mother) are both considered murder under current Alabama law, and would continue to be recognized as murder when the full legal personhood of prenatal children is acknowledged.

3.    QUESTION:  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?

ANSWER:  This is just a restatement of the first question, and it receives the same answer.  IVF procedures performed by a licensed physician or licensed health care provider are protected by Alabama law as long as they do not engage in the intentional destruction of human life.  Miscarriage is never the intent of an IVF treatment and thus would not be considered criminal.

4.    QUESTION:  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?

ANSWER:  The phrasing of this question implies that the only life-saving treatment available for ectopic pregnancy involves a violation of the prenatal child’s legal rights.  This is simply false.  There have been hundreds of cases of successful births from ectopic pregnancies.  There have also been two cases in which the child was successfully transplanted from the fallopian tubes and into the mother’s womb.  The first of these transplants was performed by Dr. C. J. Wallace who afterwards wrote:

“we should make a supreme attempt to save the life of the growing child by opening the tube carefully and transplanting it into the uterus where nature intended it should go.  It can be very quickly done.  It does not endanger the life of the mother and may be her only chance to bear a child.”[3]

5.    QUESTION:  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?

ANSWER:  When the full legal personhood of prenatal children is recognized, the responsibility for their care will be the same as the responsibility for the care of any other child.  The needs of these children will be different, but the legal responsibility to provide for those needs will be the same.  However, Personhood Alabama recommends that couples only create as many embryonic children as they are willing to have transferred into the mother’s womb in a single IVF cycle.[4]  The American Society of Reproductive Medicine has pointed out that this can be accomplished through freezing the woman’s unfertilized eggs instead of freezing living, embryonic children.[5]

6.    QUESTION:  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?

ANSWER:  The legal recognition of the personhood of prenatal children does not deny any parent of their parental rights.  If anything, it will actually strengthen and support those rights, for it will recognize that parents have the same God-given and inalienable rights in regards to their prenatal children as they have in regards to older children.  

7.    QUESTION:  Will cryopreserved embryos have a right to be transferred to someone’s uterus for birth?

ANSWER:  It is an unfortunate reality that some children are bereaved of their parents at a very early age.  Often times, these children are adopted into loving families, but there are many children who deserve to be raised by loving parents but who remain orphans for their entire childhood.  This is a great tragedy, but in spite of this tragedy, no orphan can claim the right to be forcefully transferred into someone’s family.  This is true of orphans of all ages.  Teenage orphans, preteen orphans, juniors, toddlers, infants and even prenatal orphans can only be adopted when the adoptive parents have agreed to do so.

8.    QUESTION:  Not all frozen embryos thaw successfully. Could embryo freezing be prohibited as too risky?

ANSWER:  With the advancements made in freezing eggs, the practice of freezing embryos is seldom necessary.  However, there are situations in which embryo freezing could be the key to saving prenatal lives.  For example, if a mother is critically injured in a traffic accident after one of her frozen eggs has been thawed and fertilized, it may be necessary to freeze the resulting embryonic child until his mother has recovered from her injuries.  Embryo freezing has so much potential as a means of saving prenatal lives that it should not be prohibited.

9.    QUESTION:  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?

ANSWER:  Hyper-stimulation does not cause a woman to produce an abundance of embryos; it causes her to produce an abundance of eggs.  With the advancements made in freezing eggs, those eggs which are produced by hyper-stimulation can be frozen before they are fertilized.  There is no need for the previous practice of immediately fertilizing as many eggs as possible.

10.    QUESTION:  Will patients be prevented from donating their frozen embryos to research after they complete infertility treatments?

ANSWER:  The potency of this question is based on the previous practice of creating as many embryonic children as possible at the beginning of the IVF process.  With the advancements made in egg freezing, this practice is no longer necessary.  Couples seeking IVF treatment can now have the woman’s eggs frozen prior to fertilization and only fertilize a single egg at a time.  This method would eliminate the moral question about the disposition of any unwanted embryonic children.  

11.    QUESTION:  Will patients’ medical records be subpoenaed to ensure that no one violated the embryos’ constitutionally guaranteed right to life?

ANSWER:  Medical records are protected by the Fourth Amendment to the U.S. Constitution which states that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

12.    QUESTION:  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?

ANSWER:  Just as American laws against certain activities do not prohibit individuals from traveling to other countries where those activities are permitted and engaging in those activities in those countries, so also an activity prohibited in one state does not prevent an individual from traveling to another state to engage in that activity.  A good example of this can be seen in the gambling laws that vary from state to state.  Alabama law prohibits our state from having a lottery, but Alabama’s citizens are free to travel to Georgia and buy lottery tickets there.  Similarly, those who live in dry counties within our state are able to travel to other counties and buy alcohol.  Every law is limited to the jurisdiction of the government by which that law is passed.

13.    QUESTION:  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?

ANSWER:  Absolutely not!  As Personhood Alabama’s recent position statement on IVF points out:

“Recognition of the legal personhood of prenatal children is not a hindrance to IVF.  This recognition may require certain changes to be implemented to safeguard the lives of the children formed through the IVF process, but this is no different from the safeguards that are required for any industry which has the potential to endanger human lives.”[6]

Now that I’ve answered all of RESOLVE’s questions, I’d like to ask just three questions of my own.

1.    If an infertile couple does not want to use an infertility treatment that involves intentionally killing embryonic children, will they simply have to forego the dream of having a family?

2.    What are RESOLVE’s recommendations for infertile couples who would like to conceive through IVF but who do not wish for any of their embryonic children to be intentionally killed in the process?  

3.    Would these same recommendations allow couples to conceive children through IVF after our state recognizes the full legal personhood of prenatal children?

As you can see, these three questions place RESOLVE in a difficult situation.  In order to answer these questions, RESOLVE must either admit that IVF can be conducted in a manner consistent with the legal personhood of the prenatal child, or they must tell a large number of the infertile couples in Alabama that their only hope of fertility must come at a cost to their morality.  Regardless of how RESOLVE chooses to answer, the truth of the matter is that IVF treatments can be conducted in a manner consistent with prenatal personhood, and couples seeking fertility treatments will still be able to hope for a family of their own even after prenatal personhood is recognized in Alabama.

by Bill Fortenberry

Personhood Alabama

Reposted by permission

[1] “RESOLVE’s Policy on ‘Personhood’ Legislation,” last modified April, 2012, accessed January 28, 2016, http://www.resolve.org/about/personhood-legislation.html

[2] Ala. Code § 13A-6-1(b)

[3] C. J. Wallace, “Transplantation of Ectopic Pregnancy from Fallopian Tube to Cavity of Uterus,” Surgery, Gynecology, and Obstetrics 24 (1917): 578-579 (http://americanrtl.org/files/docs/Journal-Surg-Gyn-Obst-1917p578-579ectopic-transplant.pdf)

[4] “Personhood Alabama Position Statement on In Vitro Fertilization,” last modified January 27, 2016, accessed January 28, 2016, http://personhoodalabama.com/2016/01/28/ivf/

[5] “Mature oocyte cryopreservation: a guideline” Fertility and Sterility. (2013) 99 (1): 37–43.  doi: http://dx.doi.org/10.1016/j.fertnstert.2012.09.028 First published online: October 22, 2012

[6] “Personhood Alabama Position Statement on In Vitro Fertilization,” last modified January 27, 2016, accessed January 28, 2016, http://personhoodalabama.com/2016/01/28/ivf/