By Gerard Letterie and Dov Fox
The overruling of Roe v. Wade has emboldened pro-life lawmakers to confer legal personhood status on early-stage embryos outside of pregnancy as well, including in the context of assisted reproduction. Recognizing embryos as legal persons, it is said, promotes a “culture of life.” And yet treating embryos as persons would actually undermine a promotion of human life, in this critical sense: helping people to have the children they want and are otherwise unable to have.
Designating embryos “persons” would have the effect of obstructing the medical best practices that infertile people have come to rely on to create offspring in the face of uncertain reproductive outcomes and often significant biological limits. So, treating embryos more like persons will ultimately result in fewer people born and fewer families formed. This is because the success of a procedure like in vitro fertilization (IVF) — from initiating pregnancy to coming to term in a live birth — depends in large part on being able to select from among multiple embryos the ones most likely to implant and develop into a child. The more restricted that cohort of embryos, the lower the chances of ending up with a baby to take home
Italy’s recent experience is instructive. In 2004, the country instituted major restrictions on assisted reproduction. Clinics could create no more than three embryos per cycle and then had to implant them all once. Testing embryos, or discarding them, or even freezing them to use later was not permitted. The impact on fertility patients was dramatic. For older fertility patients, pregnancy rates for IVF dropped from 28% to 13%.
The unintended outcome of Italy’s laws was far fewer IVF births — a consequence squarely at odds with the pro-life posture that the laws were designed to promote. The ineffectiveness of IVF under the restrictive regime drove many Italian patients to “reproductive tourism” at fertility clinics overseas. In 2009, Italy’s constitutional court reversed most of these laws. Then in 2012, the European Court of Human Rights held that the remaining restrictions on embryo testing violated the “respect for private and family life” guaranteed by Article 8 of the European Convention on Human Rights.
A similar dynamic may be playing out in the United States after Roe’s overruling. Until recently, most states have entitled frozen embryos to “special respect” based on their “potential to become a person.” That respect was compatible with using embryos, and even destroying some, for the noble purpose of giving people the baby they longed for. The Dobbs majority made far more of the government’s interest in protecting unborn life. States including Louisiana, Oklahoma, Kentucky, and Utah have seized on the Supreme Court’s approval of this interest’s greater strength to adopt measures that “recognize the human personhood of an unborn child . . . from the moment of fertilization.”
Some policymakers in those states have in turn suggested interpreting such laws to forbid interventions that involve the deliberate loss of nascent life even before pregnancy. Abortion restrictions may also spill over into assisted reproduction in ways that are indirect and unintended. That is especially so if state legislatures make good on talk about defining embryos as legal persons.
This push for prenatal personhood is not new. Fetal protectionism after World War II accompanied anti-abortion efforts by the religious right in the 1980s and 1990s to advance quasi-scientific theories about fetal pain alongside photographs of late-stage fetuses. But even in the 2000s and 2010s, personhood measures were designed to restrict abortion. Today, states could limit the creation of IVF embryos and require their transfer at the same time — even though implanting multiple embryos like this risks higher order pregnancies that pose health risks for the resulting children and the women who bear them.
Preventing the creation of additional embryos would also mean that female fertility patients who seek to take home a baby would have to undergo additional cycles of painful and risky egg retrieval. And placing limits on embryo testing for purposes of selection and possible discard would keep clinics from distinguishing embryos with a higher likelihood of implantation from those are unlikely to survive. IVF would become more dangerous, less effective — and decidedly less “pro-life.”
Gerard Letterie is a reproductive endocrinologist at Seattle Reproductive Medicine.
Dov Fox is the Herzog Research Professor of Law and Director of the Center for Health Law Policy & Bioethics at the University of San Diego School of Law.