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Attacks on IVF? Personhood Bills and Other Legislation to Watch
Throughout the country, many states are dealing with legislation and initiatives that could have an effect on in vitro fertilization (IVF) and women's reproductive health and medicine.
Most recently, on February 14, Virginia lawmakers in the House of Representatives voted 66 to 32 to approve "personhood" legislation that grants individual rights to an embryo from the moment of conception. The legislation defines the word person under state law to include unborn children "from the moment of conception until birth at every stage of biological development." The measure now heads to the Senate.
Virginia is attempting to pass personhood legislation in a different way than the failed personhood amendment effort in Mississippi this past November. Lawmakers in the state are seeking changes through the legal code vs. having constituents vote on it; however, there could be a detrimental effect of the measure on abortion, contraception and fertility treatment. In fact, legislator Vivian Watts (D-Fairfax) tried to attach an amendment to the bill that would declare that nothing in it could be construed to outlaw any form of legal contraception, since some kinds of birth control have the potential to prevent a fertilized egg from implanting in the uterus. The House voted 64 to 34 against considering the amendment.
"The Mississippi ballot initiative was very short and simple. In two sentences, it would have amended the state’s constitution to grant personhood at fertilization," explains Elizabeth Nash, State Issues Manager for the Guttmacher Institute in Washington, D.C., an organization that advances sexual and reproductive health through research, policy analysis and public education. "The motivation behind this effort was to ban abortion, hormonal contraceptive methods and infertility treatment."
"The Virginia bill would change the definition of person for the legal code rather than amending the constitution by considering a fetus at any point in gestation as a person," she continues. "The bill then specifies that the definition of person would not apply to 'lawful assisted conception.' However, it is unclear as to how 'lawful assisted conception' would be interpreted, including whether selective reduction [would] be permissible. Muddying the waters further, the bill states that the definition would be subject to the Virginia and U.S. Constitutions, decisions by the U.S. Supreme Court and contrary laws of the Commonwealth. All of this means that assessing the impact, should the bill become law, would be difficult."
Personhood Legislation Across the Country
Similar personhood legislation is being considered in other states. "Some of the most concerning initiatives are in states traditionally hostile to abortion rights, such as Ohio and Kansas, but these types of measures are popping up across the county," Nash says.
Many of the initiatives are ballot measures to be decided by voters; for example:
- The Arkansas Personhood Amendment may appear on the November 6, 2012, ballot in the state of Arkansas as an initiated constitutional amendment. The measure would define the word "person" in the Arkansas Constitution as the moment of "fertilization."
- A California "Personhood Begins at Moment of Conception" Initiative" (#11-0041) has been approved for circulation in California as an initiated constitutional amendment. If the initiative qualifies for the ballot and the state's voters approve it, it will define "person" as including "all living human beings from the beginning of their biological development as human organisms, for purposes of state constitutional protections of due process and equal protection" and eliminate state constitutional protections of due process and equal protection for non-biological entities, such as corporations.
- The Colorado Personhood Amendment may appear on the November 6, 2012, ballot in the state of Colorado as an initiated constitutional amendment. The measure would define the term "person" in the state constitution as the start of biological development.
- A Montana initiative focusing on the definition of a person in the state constitution was approved by the Montana Secretary of State for signature gathering. The measure would define "person" to include all members of the species Homo sapiens at any stage of development. To gain ballot access for the November 2012 ballot, supporters must collect 48,673 valid signatures from registered voters submit them by the June 22, 2012 petition drive deadline.
- An Ohio "Personhood" Initiative may appear on the November 6, 2012, ballot in the state of Ohio as an initiated constitutional amendment. The measure would define a person as any human at any stage of development, including fertilization.
- The Oregon initiative states the word “person” applies to all human beings, irrespective of age, race, gender, health, function or condition of dependency, including their unborn offspring at every stage of biological development, including fertilization.
Other personhood initiatives have been introduced as bills to be decided by the state legislature, as in Virginia. State legislators who have introduced bills include those in Alabama, Kansas, Oklahoma, Washington and Wisconsin.
"In total there are 18 states with efforts underway to re-define a person," Nash says. "These efforts are either through the ballot initiative process or in state legislatures. Most use an approach similar to Mississippi and would amend the state constitution. They would also impact IVF treatment, although most of the rhetoric around these measures is about abortion and contraception, the issue of IVF should not be overlooked."
On February 16, the Republican-controlled state Senate voted 34-8 to pass the "Personhood Act," which defines the word person under state law to include unborn children from the moment of conception. The measure now goes to the state House where pro-life Republicans outnumber Democrats by more than a 2-1 margin. In addition, the governor of the state is also Republican.
Arizona "Informed Consent" Legislation
The Healthcare and Medical Liability Reform Committee of the Arizona Senate is expected to vote on Senate Bills 1360 and 1361, which will increase governmental surveillance and publicity around in vitro fertilization (IVF) and egg freezing. The short description of the bills are as follows:
- Ethical Practices in Egg Donation: SB 1360 – Establishes best practices to ensure fully informed consent before women donate their eggs and creates reporting requirements for egg brokers.
- Ethical Practices in Assisted Reproductive Technology: SB 1361 – Establishes best practices to ensure fully informed consent before women undergo in vitro fertilization and creates reporting requirements for IVF clinics.
Under these bills, fertility clinics, laboratories and third party reproduction facilitators would have to report to the Arizona Government on all fertility patients, donor egg patients, and fertility treatments. Information that would be reported and tracked — and could be publicized — includes:
- How many eggs a woman produces, their quality, and fertilization rates
- How many embryos a fertility patient produces and how many are transferred to her uterus
- The private medical decisions a woman may make in the course of her pregnancy
- How a couple decides to handle their unused embryos
- The race, ethnicity, prior pregnancies, and number of eggs retrieved from a woman donating her eggs to another
The bills also authorize the Arizona state government to put the reports on its website for public inspection and copying.
Fertility advocates believe this legislation is an unprecedented violation of the privacy of fertility patients receiving medical treatment and would force involuntary disclosure of people’s personal, intimate reproductive medical treatments.
Legislation on Surrogacy and Sperm Donation
In Maryland, legislation aimed at governing surrogacy contracts has been introduced in both the House of Representatives and the Senate. The bills would require a fitness standard of intended parents, "a level of scrutiny that is unprecedented and unwarranted and would permit a court to terminate a gestational carrier agreement for good cause, a term not defined," according to the American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology. The organization is concerned about provisions creating an assisted reproduction registry that exceeds federal law reporting requirements and would require tracking of every embryo.
In South Dakota, legislation to ban all surrogacy contracts passed the House of Representatives. The bill has been referred to the Senate Health and Human Services Committee.
In New York, legislation has been introduced that would limit the number of offspring a sperm donor can conceive and create a donor registry in the state.
Note: Much of the information on the legislation mentioned in this article was provided by RESOLVE, the National Infertility Association.