Social conservatives are outraged that an unmarried woman was allowed access to fertility services. Fiscal conservatives scream about tax money being used to subsidize “irresponsible” decisions. Child welfare advocates worry about the children and how any mother could nurture and care for so many. Medical ethicists debate the question of whether the state should have a greater role in regulating or sanctioning unethical medical behavior.

As reproductive rights activists, we see how situations like this one challenge our basic assumptions about a woman’s right to control her body and make reproductive decisions for herself. If this case involved abortion, we would know where we stood: the woman is the only one who can make this most private decision; we trust her to make a thoughtful informed decision about her body and her family makeup; all her doctor can do is make sure she’s fully informed and then provide the services she requests; the government should not interfere with her decision and should in fact help her to act on her decision if she cannot afford the constitutionally-protected medical services she seeks.

But somehow these arguments ring hollow in the context of newborn octuplets who likely face significant, lifelong medical problems and who will eventually join their six older siblings in a three-bedroom bungalow with a single, unemployed, potentially mentally unstable mother. While we fully support the right of every woman to end a pregnancy she does not want or cannot continue, once a woman decides to carry a pregnancy to term, it seems to us that she does have certain obligations to try to ensure the wellbeing of the ensuing child or children. Government and society should not police a pregnant woman’s behavior and decisions, but a different calculus is involved before and after pregnancy, when the interests of others-including potential or existing children-takes on greater weight. Thus, questions about whether to regulate fertility treatments differ in distinct ways from debates over the regulation of abortion care. 

Passing judgment-especially in extreme cases like this-is easy. The hard part is determining whether and how to regulate fertility practices in a way that appropriately balances competing values, interests, and rights. The policy options are limited and each has its own “slippery slope,” leading to places few people want to go.

To demonstrate the difficulty, we have prepared a pop quiz based on the current story of Suleman and her doctor. Choose an answer, and see where it takes you:

1. The doctor violated standard medical practice by transferring six embryos to a woman under 35, knowing there were significant health risks for those involved. He:

a) Should be reprimanded and kicked out of his professional association, but that should be it. The industry is capable of regulating itself.

b) Should lose his license and not be able to practice medicine again. He is responsible for this situation and should be forced to pay the medical costs of the patient and her children, and perhaps even pay the costs of raising the children.

c) Should not be blamed. Given the patient’s medical history, which included past IVF cycles that yielded no more than twins, the doctor used decent medical judgment and reasonably did not anticipate that his patient would conceive and bear octuplets. He was only doing what she asked.

2. The patient knew the risks of carrying a multiple pregnancy to term and yet consented to the transfer of six embryos. Once she knew she was pregnant with multiples, she decided not to reduce the number, even though this would have been safer for herself and the remaining babies. She:

a) Should have been subjected to economic and mental screening before being allowed to have fertility treatments.

b) Should be applauded for giving all her embryos a chance to grow and be born and choosing not to abort any of them.

c) Had a right to make whatever decision she wanted and we should trust her judgment even if we wouldn’t make the same decisions ourselves. 

3) The government has a stake in protecting women’s health and promoting healthy childbearing and healthy families. It should:

a) Set limits on the number of embryos transferred in IVF cycles.

b) Create incentives for doctors and patients to transfer only one embryo at a time by covering IVF costs through public or private health insurance.

c) Stay away from telling doctors how to practice medicine and let the market correct itself.

Unfortunately, there is no teacher’s guide with all the answers-indeed we’re not satisfied with any of them-but it should be clear that crafting policy based on an emotional response to Suleman’s situation is fraught with problems. Every policy choice brings certain consequences. Failure to regulate means more high order multiples and the adverse health outcomes they bring, not to mention the economic costs for families and taxpayers. Too much regulation risks injecting the government into decisions that we might rather have people make for themselves and limiting family size in a way that echoes China’s one-child policy and our own ugly history of forced sterilization.

Yet just because there are no easy answers does not mean we can fail to act. We ought to proceed-but with thoughtfulness, deliberation, and caution. Rushing to judgment is probably the worst choice of all.

Jessica Arons is the Director of the Women’s Health and Rights Program and a member of the Faith and Progressive Policy Initiative at the Center for American Progress. Shira Saperstein is a Senior Fellow at American Progress and the Deputy Director and Program Director for Women’s Rights and Reproductive Health at the Moriah Fund.

The rule is pernicious in many ways. It allows all employees, and even volunteers, of most institutions receiving HHS dollars to deny access to a wide variety of medical services. The rule ostensibly protects only employees who object to abortion and sterilization, but it is written so broadly that it could also apply to contraception, fertility treatments, HIV/AIDS services, gender reassignment, end-of-life care, or any other medical practice to which someone might have a personal moral (not even religious) objection.

This rule is not “just a woman’s issue,” though the more than 17 million women who depend on our public health system and who are disproportionately low-income and women of color will certainly bear the largest brunt of this politically-motivated regulation. The rule also provides a striking example of how the stigmatization of one medical service—specifically, abortion—can quickly creep into other areas and erode well-established medical standards of care. Allowing medical services to be ranked on a scale of moral superiority is a public health problem.

The right of conscience is an important and time-honored value in our society and one that should not be tread upon lightly. But it is not only health providers who have rights; so do patients. Standards of care and codes of conduct exist to balance the rights of them both. Instead of pitting the rights of providers and patients against one another, perhaps there are a few tenets upon which we as a society can agree:

• Withholding relevant, medical information from patients is never good medical practice nor ethical;
• In emergency situations, the patient’s medical needs must always come first;
• Providers who are unwilling to provide certain services must give their patients timely notice of their refusal to do so and must refer those patients to a provider who can supply the needed health care.

Despite the fact that professional medical associations have consistently endorsed these precepts, the new HHS rule ignores all three of these basic yet essential codes. Fortunately, it is likely that the new administration and the new Congress will work to reverse this rule as quickly as possible. But this debate will not end with the demise of this rule, and we must not countenance some very dangerous concepts that have been advanced in support of the rule.

1. Requiring a health care provider to do his or her job is not discrimination. Employers are required to accommodate an employee’s religious beliefs when doing so does not present an undue hardship on the employer. However, refusal or withdrawal of health care in a manner that neglects a patient’s needs is an undue hardship and should not be entitled to accommodation.
2. Providing a referral for a service is not morally equivalent to providing that service yourself. There are varying degrees to which one’s conscience may be burdened by certain actions. Supplying information about where to find appropriate medical care ought not to tax one’s conscience to the same extent as performing a procedure or dispensing medication. Moral beliefs exist along a continuum and the protections afforded for such beliefs must be proportionate as well.
3. A refusal to provide care can harm patients. In our current health care system, we face a shortage of primary care physicians, a nursing shortage, a vast population of uninsured and underinsured patients, hospitals that cannot afford to stay open, and rural communities with few health care resources like clinics and pharmacies. Health care providers should not assume that just because they say no, a patient will be able to find another provider who will say yes who is also affordable and accessible.

The so-called “provider conscience” rule disrupts the careful balance established by medical codes of conduct and standards of care, placing the health, well-being, and dignity of patients at risk. We must work to ensure the proper balance is restored quickly, so that we can continue to protect the right of conscience while also protecting access to all health care services for every patient who needs them.
Jessica Arons is the Director of the Women’s Health & Rights Program and a member of the Faith and Progressive Policy Initiative at the Center for American Progress.

In 2004, Congress passed a budget rider commonly known as the “Weldon Amendment,” named after its sponsor, Rep. Dave Weldon (R-FL). This provision prohibits recipients of federal funds from “discriminating” against individuals or institutions who, due to reasons of conscience, refuse to provide abortion services, coverage, counseling, or referrals, even in an emergency.

Although the Weldon Amendment already places substantial obstacles in the way of women seeking reproductive health services, the Bush administration did not want to stop with abortion. In an eleventh-hour gift to radical right organizations, who have been pressuring the administration to cut family planning funding, HHS has proposed a regulation implementing the Weldon Amendment that would vastly expand its scope.

This is just the most recent attempt in a longstanding campaign by social conservatives to turn discomfort with abortion into opposition to contraception.

The proposed rule defines abortion as the termination of pregnancy from the point of conception: “the Department proposes to define abortion as ‘any of the various procedures—including the prescription and administration of any drug or the performance of any procedure or any other action—that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation.’”

This marks the first time the federal government has proposed a departure from the well-established medical definition of pregnancy. The mainstream medical community, including the American Medical Association and the American College of Obstetricians and Gynecologists, defines pregnancy as beginning with the implantation, not creation, of a fertilized egg.

The upshot of this revised definition is that any form of contraception that may interfere with the implantation of a fertilized egg could be categorized as a form of abortion. This means that any health care entity or provider, on the grounds of their opposition to abortion, could refuse to provide women with access to 40 percent of the most commonly used methods of birth control in the United States—the pill, the IUD, emergency contraception, the patch, the shot, and the ring. In other words, our best tools for preventing the need for abortion would suddenly be redefined as abortion.

This is just the most recent attempt in a longstanding campaign by social conservatives to turn discomfort with abortion into opposition to contraception. Instead of being upfront about their genuine, but unpopular, position that contraception is morally wrong, right wing groups have tried to confuse people into thinking that the most common forms of birth control used by women actually cause abortion.

Virtually all women of reproductive age who have had sexual intercourse—98 percent—have used at least one method of contraception. Almost 15 million women in the United States use hormonal contraception or an IUD. Are we really prepared to let health insurance companies, hospitals, health clinics, and health care providers of all stripes tell these women that they are potentially having an abortion every month and deny them access to routine medical care?

There are good scientific reasons why medical professionals define pregnancy as beginning at implantation rather than fertilization. For one thing, there is no way to know if a woman is pregnant prior to implantation. The body simply does not give off any signals of pregnancy (e.g., increased hormone levels or an expanded uterus) until then.

In addition, nature has made it clear that not every embryo is meant to develop into a fetus and eventually be born. It is estimated that 31 percent of all pregnancies end in miscarriage, often before a woman even knows she’s pregnant. And anywhere from one-third to one-half of all fertilized eggs never begin or complete implantation.

Anyone familiar with fertility treatments understands this basic principle. Most people would recognize that an embryo in a Petri dish does not constitute a pregnancy. And placing an embryo in a woman’s uterus does not automatically make her pregnant. There are plenty of women who have tried several rounds of in vitro fertilization but, sadly, are unable to get pregnant.

Even if we were somehow able to detect the presence of an embryo before implantation, when exactly would “conception” occur? The process of fertilization itself can take up to 24 hours. The zygote then begins to divide and differentiate into the preembryo and travels down the fallopian tubes toward the uterus. Implantation of the preembryo into the uterine lining typically begins about 5 days after fertilization and will be completed between 8 and 18 days after fertilization. Thus, despite the assertions of social conservatives, there is no one “moment” of conception.

Notwithstanding all these scientifically inconvenient facts pointing to the need to define pregnancy as beginning at implantation, the HHS regulation would allow individuals or institutions claiming its protection to provide their own definition of pregnancy and abortion. The proposal states, “[T]he conscience of the individual or institution should be paramount in determining what constitutes abortion….”

That means that within each hospital, health clinic, or health insurance program that receives federal money, each employee would be entitled to decide when he or she thinks pregnancy begins and refuse services based on that definition. Women would have no guarantee of receiving consistent medical care based upon their personal needs and circumstances. Rather, the treatment they receive could vary from one hospital, health insurance program, and health care provider to the next.

The ultimate catch-22 of course is that if we cannot determine if a woman is pregnant, then we can treat all women as potentially pregnant—and refuse them access to drugs and devices that would help them prevent pregnancy. Does your brain hurt yet?

This is hardly the first time the Bush Administration has shown its disdain for science and medicine (see climate change, abstinence only programs, and Vioxx) or for contraception (see Susan Orr, Plan B, and UNFPA funding), but let’s hope it’s the last. We must work to ensure this latest trend doesn’t become our reality.

Jessica Arons is the Director of the Women’s Health and Rights Program and a member of the Faith and Progressive Policy Initiative at the Center for American Progress.

After two years of fertility treatments and the night before Augusta Roman was to undergo implantation of embryos created through IVF, her husband Randy informed her that he had had a change of heart and did not want to go through with the procedure. The couple underwent counseling and then divorce. The only contested issue was their remaining three embryos.

Augusta won in the trial court, but Randy won in the appellate court. While the case was awaiting appeal with the Texas Supreme Court, both parties vowed to appeal all the way to the United States Supreme Court, which had the papers buzzing about the “legal implications for Roe v. Wade.” The argument advanced by Augusta’s lawyers in the briefs to the Texas Supreme Court was that a woman should have the same right to control the disposition of embryos outside her womb as she has of naturally conceived embryos. Randy countered that such a position would reduce men to mere sperm donors.

Ultimately, the Texas Supreme Court refused to consider the appeal and the case ended there. But the issue over which the Romans fought is bound to come up again. It is estimated that approximately half a million frozen embryos are currently being stored by fertility clinics in the United States. Patients who have not used all the embryos they have created have several options from which to choose in deciding what to do with the embryos. They can:

• Use the embryos themselves for procreative purposes at a later date
• Donate the embryos to others who would like to have children (sometimes referred to as embryo “adoption”)
• Donate the embryos for medical or scientific research (primarily embryonic stem cell research)
• Have the embryos thawed and discarded
• Keep the embryos frozen indefinitely

Whether overwhelmed by the complexity of the decision or simply because they are never pressed to make a decision, some couples opt for a sixth unofficial option: abandonment. In response to the latter, some fertility clinic contracts now require that if a couple fails to pay storage fees or remain in touch with the clinic, the embryos will become the property of the clinic after a specified period of time and can be destroyed or used for research. But there is little statutory or case law to provide clinics and patients with guidance.

For a complete discussion of the disposition of frozen embryos, you can read the relevant section of Future Choices, or the entire report.

Although social conservatives have not been able to stop the use of ART, they sometimes have found ways to limit its application in a manner that is consistent with their worldview—particularly their ideologically driven definition of when human life begins and, accordingly, becomes endowed with certain rights. If one believes that human life begins at “conception” and if one equates “life” with “personhood,” then logic would have it that human embryos are people with rights.

The statutes go on to provide the fertilized ovum with an entitlement to sue or be sued.

Of course from a medical standpoint, pregnancy—whether conceived naturally or artificially—does not begin until an embryo is implanted in a womb. But conservative absolutists have worked hard to obfuscate this fact in order to confuse the American public and promote their agenda of assigning rights “from the moment of conception.” Although conception is a process and cannot be identified as occurring at a specific moment in time (which is one reason why implantation is used to mark the beginning of a pregnancy), this strategy has allowed conservatives to launch a seamless attack on abortion, oral and emergency contraception, and now ART.

When it comes to legislation regarding embryos created by ART, Louisiana has taken the lead in promoting the view that frozen embryos have individual rights. Louisiana’s statutory scheme regarding human embryos was enacted back in 1986 and is unique both in its broad scope and dangerous implications.^[1] A close examination reveals that the entire law is intended to codify the idea that full personhood exists as soon as an egg has been fertilized by sperm. Despite conflicting with both medical facts and the religious and philosophical beliefs of many Americans, the law has been on the books for over 20 years as part of an orchestrated attempt to undermine a woman’s right to have an abortion, as well as other fundamental rights discussed below.

To begin with, the Louisiana law defines a human embryo as a fertilized ovum “composed of one or more living human cells and human genetic material so unified and organized that it will develop in utero into an unborn child.” The use of the term “unborn child” rather than “fetus” is telling, given that the former phrase is a favorite of the “Pro-Life” movement that opposes abortion rights.

Next, the applicable laws state that an “in vitro fertilized human ovum exists as a juridical person until such time as the in vitro fertilized ovum is implanted in the womb; or at any other time when rights attach to an unborn child in accordance with law.” (“Juridical” means “of or pertaining to the law, jurisprudence, or the administration of justice; legal.”) The statutes go on to provide the fertilized ovum with an entitlement to sue or be sued.

In other words, the state of Louisiana has assigned to human embryos a legal identity with rights that can be litigated in court—regardless of whether the embryo is in a Petri dish in a lab or in a womb, so long as rights have “attach[ed] to an unborn child.” Of course, determining when rights attach has everything to do with the continuing validity of Roe v. Wade, the Supreme Court decision that established a constitutional right to abortion. A major piece of the “Pro-Life” movement’s strategy has been to convince the Supreme Court to redefine legal personhood so that rights arise at fertilization and override a woman’s right to have an abortion.

To ensure there is absolutely no question about the status of the embryo, the law categorizes a fertilized ovum as “a biological human being” and not the property of the physician, the facility that employs the physician, or the “donors” of the sperm and ovum. Fertility patients who have provided genetic material to create an embryo are given two choices. If they “express their identity,” then their rights as parents will be preserved. But if they fail to do so and “renounce” their rights, then the physician will become the temporary guardian of the fertilized ovum until “adoptive implantation” can occur. A court also may appoint someone to “protect the in vitro fertilized ovum’s rights.”

Again, the language is illuminating. The fact that the embryo will be “adopted” rather than “donated” underscores the notion that an embryo and a child are one in the same. It also is notable that under the law only married couples may receive an embryo for “adoptive implantation”—a clear rejection of homosexuals and single people as legitimate parents.

The implication of this provision is, once again, that an embryo should be thought of as a child.

Under this set of laws, a viable embryo may not be destroyed intentionally. An embryo will only be considered unviable if it does not further develop after 36 hours in an unfrozen state. The physicians and medical facilities that perform in vitro fertilization are charged with safeguarding the fertilized ova in their care. However, the law does provide some protection to these physicians and medical facilities—if someone brings a lawsuit against them on behalf of a fertilized ovum, they will be immune from any liability if they are found to have acted in good faith.

The judicial standard to be applied to any disputes that arise is the “best interest of the in vitro fertilized ovum.” I am not making this up. The “best interest” test is one that traditionally has been applied to custody disputes regarding born children. Importing this standard to the realm of embryo disposition is questionable, as child custody can only be determined once parenthood has been established. Applying this standard to these circumstances completely ignores the fact that the question to be answered is whether one will become a parent at all.

The implication of this provision is, once again, that an embryo should be thought of as a child. This conclusion is further bolstered by the fact that the law provides no guidance for how to determine what the “best interest” of an embryo might be. But given that the law prohibits the intentional destruction of an embryo, it appears to presume that the best interest will always be implantation and gestation.

Clearly, it is problematic that this statutory framework invests non-sentient, microscopic organisms with rights—including, apparently, the right to be gestated and born—thus setting up a not-so-veiled challenge to the right of a woman to abort a nonviable fetus for any reason and to abort a viable fetus if necessary to preserve her health or life. But it also raises a number of significant constitutional issues beyond the right to have an abortion.

First, it prohibits fertility patients from choosing to discard their unused embryos or donate them to research, which denies them their right to determine the disposition and use of their own genetic material. This provision implicates their right to privacy, as well as their right to bodily integrity and decisional autonomy. Individuals must always consent to medical research, but it is they, not the government, who must exercise that consent.

Second, it transforms fertility patients who cannot or do not wish to use all the embryos they have created into egg and sperm donors, regardless of whether they consent. For those patients who do not wish to have their genetic offspring born and raised by another family, such a rule violates their right not to procreate. As the Supreme Court has said, “If the right to privacy means anything, it is the right . . . to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.”

But embryos and children are patently not the same and the law should not treat them as such.

Finally, the Louisiana laws deny genetic parents the right to provide meaningful consent to donate their embryos to prospective parents. In every state, women who are pregnant and intend to put a child up for adoption have a time period after the birth of the child to change their minds about the adoption. Yet Louisiana’s embryo laws effectively mandate consent for a future adoption before a pregnancy has even begun, with no opportunity for changing one’s mind at any point.

As such, this requirement conflicts directly with Louisiana’s adoption law, which does not allow a birth mother to surrender her child until the fifth day after the child’s birth. It also is inconsistent with some states’ laws that provide surrogate mothers a period of time after a birth to decide whether to keep the child or surrender it to the intended parents, as previously promised. The consistent justification for both types of laws is that prior agreements to waive parental rights and responsibilities are unenforceable because people cannot truly understand what it is they are giving up until their child has been born. The implicit acknowledgment in these safeguards is that birth and conception are separate and distinct events.

None of this is to say that human embryos do not have value and significance in our society and should not be treated with respect. But embryos and children are patently not the same and the law should not treat them as such.

Simply because conservatives have sought to limit the uses of ART and their byproducts does not mean that, as progressives, we should promote their unrestricted use. There are legitimate progressive concerns to be raised and addressed as fertility treatments become more and more common—concerns including the health and well-being of women who undergo fertility treatments, donate eggs, or agree to be surrogate mothers; the risk of multiple pregnancies; the use of embryo screening for specific genetic or physical characteristics; and the access children of ART have to their own medical and genetic history.

We should not, however, let these strategic conservative assaults go unanswered. In our country’s epic battle over abortion, the people who rely on ART to create their families are being placed on the front line, but the rights of all of us are under attack. If we value individual freedoms, healthy families, and responsible scientific and medical progress, we must be vigilant in monitoring right wing attempts to control the practice of ART, thoughtful in our response, and proactive in promoting our own views of the appropriate parameters of baby making in the 21st century.

Jessica Arons is the Director of the Women’s Health and Rights Program and a member of the Faith and Progressive Policy Initiative at the Center for American Progress. She is currently working on a report about Assisted Reproductive Technologies and the Law, due for release in the winter of 2007.

Notes

1) La. R.S. 9:121-9:133 (2007).