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June 5, 2003

Press Contact: Kirston Fortune, UT Law Communications, (512) 471.7330

Let's Not Make Criminals Out of Fertility Patients

By John A. Robertson
The Austin American Statesman, Wednesday, June 4, 2003
Reprinted with the author's permission

Prof John A. Robertson
Prof John A. Robertson

AUSTIN, Texas — Infertile couples using in-vitro fertilization (IVF) to have children typically freeze extra embryos for later use. A bill known as the "Prenatal Protection Act" awaiting Gov. Rick Perry's signature could make Texas couples and doctors who thaw and don't implant embryos guilty of murder.

This is because the bill (Senate Bill 319), intended to protect fetuses against third-party assaults, has been broadly written to cover "unborn children" from "fertilization" without providing a clear definition of permissible exceptions. Because embryo thawing and discard is not a medical procedure, and may not even be performed by a doctor, it could fall outside the bill's exception for "lawful medical procedures."

IVF is an essential medical procedure for the one in eight married couples suffering from infertility in Texas. To increase the chances that a pregnancy will occur (which now happens about 30 percent of the time in the best clinics), it is a routine practice across the country to stimulate a woman's ovaries to produce multiple eggs to be fertilized with her husband's sperm. For safety reasons, two or three of the healthiest embryos are placed in her uterus, and the remainder frozen for later use.

Many infertile couples will thaw remaining embryos and implant them with the hope of having a first child or sibling for an existing child. But some couples may have no reproductive need for stored embryos and request that embryos be removed from storage and not implanted. Those thawed embryos will cease to develop further and die. In some cases, couples donate their embryos to other infertile couples or to researchers for fertility or embryonic stem cell research.

The Prenatal Protection Act now on Perry's desk could make criminals of couples who ask that their embryos be thawed and not implanted. This is because the act modifies the current definition of "individual" in the Texas Penal Code, now defined as a "human being who has been born and is alive," to "a human being from the time of fertilization," thus giving fertilized eggs and embryos the same protection that children and adults receive. Under this definition, anyone causing the death of a fertilized egg or early embryo is guilty of murder and subject to life imprisonment or even a capital charge.

The intent may not have been to penalize infertile couples, but the exception written into the law protects from prosecution only "conduct committed by the mother" or "a lawful medical procedure performed by a physician or other health care professional," referring to abortion. But embryos are not typically thawed by the mother, and non-transfer is not the same as an abortion. Opponents of IVF can plausibly argue that thawing and non-transfer is not a "medical procedure," and thus not covered by the abortion exception.

The original intent of this bill — to cover fetuses whose death is caused by third parties — makes sense when the fetus is viable, but signing this bill could be a disaster for infertile couples in Texas. Those with frozen embryos may have to keep them in storage indefinitely at a cost of hundreds of dollars per year. New patients going through IVF will no longer be able to fertilize more eggs than can be safely implanted at one time in the uterus, which greatly increases the chance of success. This could lead to more failed cycles, and the expense, stress and physical burdens on women who must go through additional cycles of IVF to have a baby.

Protecting viable fetuses from third-party aggressors is good policy, but preventing thawing and discard of frozen embryos is not. Infertile couples seeking to create life are not murderers because they or their doctors thaw and don't implant embryos no longer needed to have a family. Perry should not sign a bill that could mean that they are.

Robertson holds the Vinson & Elkins Chair in Law at UT-Austin and serves as chair of the Ethics Committee of the American Society of Reproductive Medicine.

Related Link:
The Austin American Statesman release at