I Want To Put A Baby In You: Worst Legislation Ever

This proposed legislation reflects an embarrassing lack of respect and support for our wounded soldiers.

military womanEarlier this year, I wrote about the steps being made to provide fertility treatment to veterans whose infertility was caused by their service. Things looked hopeful in April, when Democrats and Republicans achieved bipartisan support for expanding a Veterans Affairs program related to fertility treatment. Generally, supporting our troops—particularly when their service is the direct cause of a medical issue like infertility—should be a political no-brainer.

But a proposed amendment to a spending bill, passed by a House Appropriations subcommittee on July 14, 2016, could undermine the entire effort. And the Amendment, which is sponsored by Representative Andy Harris (R-MD-1), may do more damage than just halting forward momentum. If passed, it would drastically reduce—perhaps to zero—the number of veterans who could receive fertility assistance through federal benefits. Indeed, even service members currently receiving treatment could lose their benefits.

Unsurprisingly, an entity called RESOLVE, which is a prominent national fertility association, is calling the Harris Amendment the “worst piece of legislation ever introduced.” (To be a little cheeky, I’ll go ahead and say that the Indian Removal Act and the Fugitive Slave Act were worse.). But at its essence, the debate simply relates to whether an embryo should be considered a human life.

What Would The “Harris Embryo Amendment” Do? Rep. Harris’s amendment provides that any federal funding used to provide In Vitro Fertilization (IVF) treatments cannot “result in” the destruction of viable human embryos “before the embryo transfer.” While the language is ambiguous, RESOLVE has interpreted it to mean that (1) a doctor may not perform an IVF procedure if there is a chance that an embryo will be destroyed during the procedure; (2) embryos that are not used in an IVF process can never be discarded or destroyed.

Either consequence would have grave effects on the ability of veterans—and in fact any patient, veteran or not, using the assistance of federal monies—to use IVF treatment. Here, I focus primarily on the second point above:  that embryos might not be able to be destroyed after a patient has completed IVF.

Embryo Options. It may seem obvious, but fertility doctors don’t create exactly the same amount of embryos that a couple hopes to conceive. From the total number of embryos created, an evaluation is made regarding the quality, durability, and … yes, sometimes even the sex of the embryo. The best embryos are then implanted to “make a baby.”

But what are the options for the remainder of the embryos, many of which may be perfectly healthy and viable? The choices, for the most part, are:

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  • Cryopreserve them indefinitely. This can result in thousands of dollars a year in storage fees.
  • Implant all of the embryos at once. This is medically risky, and threatens the life of the mother as well as the potential fetuses. Not to mention it may result in a much larger family than the parents are financially or otherwise prepared for.
  • Implant all the embryos over time. This is generally cost-prohibitive, since each implantation requires a doctor and of course medical fees. Moreover, it could mean that a couple that doesn’t want more kids might feel compelled to keep going with more and more treatments. Some argue that transferring an embryo to a woman during a time that a pregnancy is highly unlikely to take place would not be a technical destruction. But this alternative seems like a strange exercise for the equivalent result of destruction.
  • Donate the Embryos. The can be tricky. First, the strongest embryos have likely already been used. Second, if a patient has any medical conditions that are likely to be passed to potential children, it may be difficult to find recipients. Additionally, many patients struggle with the thought of full genetic children being raised by other parents. On the other hand, many parents are comfortable with this, and happy to donate excess embryos to those in need.
  • Donate to Science or Research. This is often viewed by those who oppose destruction of embryos as the same thing as destruction. But those interested in donating to science or research at least receive the mental benefit of knowing that the research may make a difference in future lives.
  • Embryo Destruction. This is often the simplest course for those not prepared or comfortable with the other options.

The Harris Amendment removes the most common course of action—number (6). But the other options are financially or otherwise infeasible for many who would grow their family through IVF. And these options are even more likely to be financially untenable to veterans who have been catastrophically wounded during service.

Other Responses To The Harris Amendment.

Since the passage of the Harris Amendment in subcommittee, the American Society for Reproductive Medicine (ASRM) president, Dr. Owen K. Davis, wrote a letter to the chairman of the House Appropriations Committee. Dr. Owens argued that the amendment “thwarts any individual couples’ family-building goals” and that the consequences will lead to dangerous medical situations “from doctors being required to transfer all created embryos at once.”

The Paralyzed Veterans of America also issued a scathing statement against the Harris Amendment. It put the issue in emotional terms, suggesting that legislators should “face those combat-wounded veterans and their families” before stripping them of their best means of procreation.

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How Do Courts Treat Embryos?  In a future piece, I’ll discuss more about how courts generally treat embryos. You might be wondering what would happen if frozen embryos do have “personhood,” and a freezer door is left open. Or if a petri dish is dropped? Do we have a mass negligent homicide case on our hands? For now, I’ll simply say that the Harris Amendment embraces a view of embryos that is inconsistent with prevailing law, and results in an embarrassing lack of respect and support for our wounded soldiers.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.