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An uptick in state personhood bills fuels growing fears over IVF restrictions

An uptick in state personhood bills fuels growing fears over IVF restrictions

Following the recent Alabama Supreme Court ruling that embryos created through in vitro fertilization are considered children, reproductive rights groups are sounding the alarm over so-called fetal personhood bills in more than a dozen other states they say could be interpreted to restrict IVF treatments if enacted.

As of Friday, fetal personhood bills had been introduced in at least 14 state legislatures during their ongoing 2024 sessions, according to the Center for Reproductive Rights and the Guttmacher Institute, research groups that advocate for abortion rights. It marks the latest phase in an uptick in such bills since the U.S. Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision overturned the national right an abortion in the U.S.

“Since Dobbs, we have seen a marked increase in personhood bills introduced in state legislatures across the country,” Elisabeth Smith, the director of state policy and advocacy at the Center for Reproductive Rights, said in a statement to NBC News.

“What’s happened in Alabama is extreme, but it is not happening in a vacuum. This is the chaos created by the Dobbs decision,” she added.

For years, anti-abortion lawmakers at the state and federal levels have pushed for personhood laws, which aim to establish that an embryo or fetus should have the full rights of a person based on the idea that life begins at conception.

Reproductive rights groups have long warned that such proposals could be interpreted by judges in ways that could restrict or effectively ban IVF.

Prior to the 2022 Dobbs ruling, personhood efforts were in large part designed to chip away at abortion rights. While reproductive rights advocates were concerned by them, the ability of such measures to go any further remained largely theoretical due to the 1973 Roe v. Wade ruling, which kept in place a nationwide standard to protect abortion rights.

Even before the Dobbs ruling, at least 11 states had on their books broad personhood laws or policies, largely designed to augment homicide and assault statutes in cases where the victim was pregnant, according to reproductive rights nonprofit group Pregnancy Justice.

But with the landmark Roe ruling protecting those rights gone, efforts by conservative lawmakers and judges to advance fetal personhood bills pose a real threat to some fertility treatments, including IVF, reproductive rights advocates say.

The Alabama Supreme Court’s decision this month finding that frozen embryos created through IVF are considered children under state law — meaning that people could theoretically be sued for destroying an embryo — made those threats even more abundantly clear and elevated concerns that proposals elsewhere could manifest similar outcomes.

Among the newly proposed bills is one in Florida that would establish a right for parents to sue for civil damages for the “wrongful death” of an “unborn child.”

The bill would allow such suits when the death is caused by “wrongful act, negligence, default, or breach of contract or warranty” — leading some opponents to fear that the language could be interpreted to include the destruction of embryos.

The proposed legislation explicitly states that a “mother” can’t be sued under the law — but no protections exist for anyone else, including medical and health care professionals.

Republican lawmakers in Florida proposed an amendment to the bill, the same week as the Alabama ruling, to define “unborn child” as a human “at any stage of development, who is carried in the womb.” The change would likely protect IVF patients and doctors, but it remains uncertain whether it would be in any final version the full Legislature were to vote on.

Republicans have proposed the bill in both the Florida House and Senate. The bill’s House sponsor, state Rep. Jenna Persons-Mulicka, said in a statement to NBC News that the bill “is not intended to and does not impact IVF in Florida.”

“Our proposed bill is very different than the Alabama law,” she added.

The bill’s sponsor in the Senate, state Sen. Erin Grall, didn’t respond to questions from NBC News about the bill.

The list of state bills proposed this year also includes one in Kansas that would make it legal for pregnant people to claim child support for their unborn children at any point after conception.

The bill clarifies the term “unborn child” as both a human “in utero” as well as a human “at any state of gestation from fertilization to birth,” creating questions about how a final version could be interpreted by a conservative court.

In Kansas, bills are initially introduced by legislative committees, not individual lawmakers. State Sens. Mike Thompson and Rick Kloos, the chair and vice chair of the Federal and State Affairs Committee, which introduced the bill, did not respond to questions about the proposal.

Elsewhere, Republican lawmakers in Colorado and Iowa introduced bills this year that would define personhood as beginning at fertilization, for the purposes of those states’ homicide, wrongful death and assault laws — with no exceptions for embryos created by IVF.

“We know that personhood is and has been a goal of the anti-abortion movement, and there are often attempts to further establish it via several different routes. The efforts around establishing personhood further impact criminalization of pregnancy outcomes and self-managed abortion, as well as stigmatize IVF care and other assisted reproductive methods, which are already heavily stigmatized and often inaccessible due to cost,” said Maya Cherins, a spokesperson for the Guttmacher Institute.

Other states where lawmakers have proposed various fetal personhood bills in the current legislative sessional include Alaska, Georgia, Illinois, Indiana, Massachusetts, Missouri, New York, Oklahoma, South Carolina and Utah, according to the Center for Reproductive Rights and the Guttmacher Institute, which are both tracking such proposals.

Representatives for the groups noted that there are several different categories of laws already in effect, making it difficult to predict which ones could be subject to interpretations straying from their intent.

For example, many states have laws on the books that allow people to sue for damages in the event of the wrongful death of a fetus, though most of them feature clarifying language that the fetus must be viable (typically around 24 weeks of pregnancy).

Other states have protected personhood with exceptionally nuanced legal distinctions. Louisiana, for instance, has had a law on the books since 1986 establishing that an embryo is a “juridical person” but not a “legal person” — a fine legal distinction proponents of the law claim is designed specifically to ban the destruction of embryos.

But in recent years, at least four states have enacted robust personhood laws.

In Georgia, a 2019 six-week abortion ban that took effect after Roe was struck down includes a provision allowing a pregnant woman to declare her fetus with a detectable heartbeat (around six weeks in some cases) as a dependent on her state taxes.

In Missouri, state law broadly defines life as beginning “at conception,” and says that every “unborn child at every stage of development” is afforded “all the rights, privileges, and immunities available to other persons, citizens, and residents” of the state. But interpretation of the statue has prompted thorny legal questions.

An Arizona personhood law from 2021 would define any biological phase after conception, including fetuses, embryos, and fertilized eggs as “people.” The law remains blocked by the courts.

And in 2018, in Alabama, voters passed an amendment to the state constitution that established that state policy recognized and supported “the sanctity of unborn life and the rights of unborn children, including the right to life” and to “ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate” — a measure that the state Supreme Court relied on, in part, in reaching its decision last week.

The decision, said Planned Parenthood Southeast President Carol McDonald, “could ripple across the country on the state and federal level as personhood laws proliferate.”

Adam Edelman

Adam Edelman is a political reporter for NBC News.

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