The inalienable right to life possessed by every human being is present from the moment of initial formation, and all human beings shall be entitled to the equal protection of persons under the law.
Incremental Personhood
Bill Fortenberry
Should Personhood be Recognized from Implantation Instead of Fertilization?
In the wake of the attempt to pass a Personhood Amendment in Mississippi, there have been many who have come forward with the suggestion that the Personhood movement is in need of a different approach. It is suggested that we not seek personhood for all human beings from the moment of fertilization but rather seek that noble status for all human beings from the moment of implantation. Currently, this suggestion is proving to be a very polarizing thought within the pro-life community. Those making the suggestion accuse those rejecting it of being willing to let thousands of innocent children lose their lives by sacrificing the good in order to vainly strive for the best. Those who oppose this suggestion accuse those presenting it of being weak in the faith and lacking the backbone to stand for what they know to be right. I have many, wise friends on both sides of this debate, and that has given me a unique perspective that I believe will prove beneficial to all of us.
There are three reasons that are typically given for recognizing personhood as beginning at implantation. The most common of those reasons is the claim that only about half of the embryos that enter the womb will actually implant and continue to grow. The second claim that we will consider is the claim that recognizing personhood as beginning at a point prior to implantation would bring an end to in vitro fertilization (IVF) treatments. The final claim is that if we recognize personhood as beginning prior to implantation, then it will outlaw most birth control methods. There is a fourth argument that is occasionally, though very rarely, presented which I will mention shortly, but for now, let’s take a look at the three arguments that are most commonly heard in favor of this change to the personhood language.
The first argument is false on at least two levels. To begin with, it is obvious that this claim is based on a complete assumption. There is no way to know that fertilization has occurred inside of a woman’s body unless that fertilization takes place in front of a camera placed within her fallopian tubes. I am not aware of any study which has inserted cameras into the tubes of a large number of women in order to observe the number of fertilizations and subsequent implantations so that a rate at which implantation occurs can be calculated.
The only scientific support for this first argument comes from studies of the successful implantation of embryos created through the process of IVF. However, there are a number of factors affecting implantation rates in IVF treatments that do not occur in natural pregnancies. Such factors as the day on which the embryo is transferred into the mother’s body[1] and even the depth at which the embryo is inserted[2] have been shown to significantly affect the outcome of the IVF treatment. It would be ludicrous to assume that these factors are present in natural pregnancies. Therefore, it is equally ludicrous to use calculations of average implantation rates for IVF as a statistic for the number of failed implantations in natural pregnancies.
The first argument fails on a philosophical level as well. The claim that many embryos fail to implant in the womb does not tell us anything at all about whether or not those embryos are living people. That is merely an arbitrarily chosen point in human development. We could just as easily claim that personhood should start at birth because of the significant number of miscarriages that occur every year. We could also say that no one is a person until his first tooth breaks through the gum since so many infants die without ever experiencing that particular biological change. In the same manner, we could set the definition of personhood at the first loss of a tooth or at puberty or even at the emergence of the first gray hair. Each of these is a stage of biological development that a significant portion of the world’s population never attains. It is unconscionable to claim that only those who have gray hair are really people, but that is no different from claiming that only those who have successfully implanted in the womb are really people. Both claims are equally invalid.
The second reason given for setting the recognition of personhood at implantation instead of fertilization is based on the assumed effect that the earlier recognition would have on the practice of in vitro fertilization. This argument was used quite frequently in Mississippi with the blog Parents Against MS 26 leading the charge in claims that the Personhood Amendment would be the death knell of IVF in that state. In a debate between myself and Atlee Breland, the founder of Parents Against MS 26, I highlighted a major flaw in this argument:[3]
The most common method of IVF treatment involves harvesting a large number of eggs and initiating fertilization for all of them. After a few days, two or three of the newly formed embryos are then selected for implantation and the rest are either frozen for later use, sacrificed in scientific research or discarded. Eventually, a large number of the frozen embryos are also either sacrificed in scientific research or discarded. This method of IVF treatment would be outlawed if personhood is recognized as beginning prior to implantation for the simple reason that it involves killing innocent human embryos.
However, this is not the only method of IVF treatment available. One year after the above method demonstrated its first success, another method became available[4] which has actually proven to be even more successful.[5] In this alternative method, a large number of eggs are harvested, but only one of them is fertilized and transferred into the mother’s womb. The remaining eggs, as opposed to embryos, are frozen to be used or discarded at a later time. This process of utilizing single embryo fertilization and oocyte cryopreservation would still be permitted because it does not involve the killing of any human embryos. This method, however, would not generate the alternative revenue stream that is enjoyed by those IVF clinics who sell their unused embryos to be destroyed through scientific experimentation.
The challenge could still be raised, however, that recognizing personhood as beginning at fertilization would put doctors and IVF clinics at risk for prosecution over any embryonic deaths that may occur during this process. This is a valid concern, but the risk of prosecution for embryonic death would be no greater than that which already exists in every hospital today. According to the National Center for Health Statistics, seventy-five percent of all the deaths in America occur in a medical facility or nursing home.[6] Death is a common occurrence within our nation’s hospitals and clinics, but only those doctors who directly cause the death of their patients through either malicious intent or criminal negligence are in danger of criminal prosecution. The same would be true of IVF clinics if personhood is established at fertilization.
The third opposition to establishing personhood at fertilization is also decidedly false. Recognizing personhood as beginning at fertilization would have very little effect on birth control. There are four different categories of birth control methods: psychological, surgical, physical and chemical. Personhood at fertilization would have no effect whatsoever on the first three and only a minor effect on the fourth.
All of the methods in the first three categories work to prevent pregnancy by preventing the sperm from reaching the egg. Psychological methods of birth control include abstinence, natural family planning and early withdrawal. The surgical methods include vasectomies, hysterectomies and tubal ligations. The physical methods include condoms, cervical caps, diaphragms and sponges. All of these methods work on the same principle of preventing the sperm from reaching the egg in order to prevent pregnancy. Since fertilization does not occur through the successful use of these methods, they would remain available if personhood is recognized as beginning at fertilization.
The objection may be raised that these methods are not as effective as the chemical solutions which make up the fourth category, but this objection is ill-founded. Abstinence, of course, is completely effective. Apart from IVF treatments, a woman cannot become pregnant without intercourse. The surgical methods follow in a close second with effective rates exceeding 99%, and the physical methods are effective more than 95% of the time. The other psychological methods fare the worst, ranging from 90 – 93% in effectiveness. In comparison, the most common chemical method, the pill, has an effectiveness of 97.6% which places it on an equal plane with the physical methods.[7] Obviously, the question of effectiveness is without any real foundation.
The chemical methods of birth control include the pill, the patch, the implant, the IUD and Plan B. Most of these methods claim to operate in the same way as the methods in the other categories by preventing the sperm from reaching the egg. However, these methods have also been shown to have a secondary effect which prevents the implantation of the embryo in the womb thereby causing either the death of the embryo or an ectopic pregnancy.[8] The presence of this secondary effect could cause these methods of birth control to be illegal if personhood is recognized from the moment of fertilization.
The claim that recognizing personhood from fertilization would outlaw most birth control methods is decidedly false. It would only affect one of the four categories of birth control and would only do so for as long as the methods in that category continue to have a secondary effect which is harmful to embryonic humans. If a chemical birth control is developed which does not have any secondary effects on the embryo, then that method would be entirely permissible. Even without chemical birth controls, however, there are still many equally if not more effective methods of birth control that would remain available.
As mentioned previously, there is a fourth argument for recognizing personhood from implantation instead of fertilization, and that is the argument of expediency. Those presenting this argument claim that recognition of personhood from fertilization is too radical of a change to have any hope of success in today’s political climate whereas personhood from implantation seems to have a much higher level of support. They argue that we should first support an amendment that is capable of passing and then begin working on an additional amendment which would implement the ideal understanding of personhood.
This is actually a legitimate argument founded on what seems to be sound political strategy. The recognition of personhood as being present from at least the moment of implantation is a view that is made morally acceptable by virtue of the phrase “at least.” By eliminating the contention over in vitro fertilization and birth control, this view of personhood could generate enough support to be signed into law. Unfortunately, the soundness of the strategy ends at that point.
The second half of this strategy would never be implemented. The difficulty of passing an amendment which recognizes personhood from fertilization will not be diminished by the passage of a personhood at implantation amendment. If anything, it will be increased. The three objections dealt with above would still apply. The same people and organizations who oppose personhood at fertilization now would still oppose it then, and they would most likely oppose it more vigorously. Plus, this strategy would give many of those who reluctantly support personhood at fertilization an opportunity to reject that view while still salving their consciences. Implementing the first part of this strategy, therefore, would serve to motivate our opponents while placating our supporters, and that is not a winning strategy.
Some may object to this conclusion by claiming that a hopeless insistence on recognizing personhood from fertilization will allow the death of millions of children who could have been saved by the recognition of personhood from implantation. This objection is itself an argument against the implantation approach, for if personhood from fertilization is hopeless now, then how can it be less so if we only recognize personhood from implantation. Furthermore, the objection is spurious in that a recognition of personhood at implantation would generate increased usage of the morning after pill as well as an increase in embryonic experimentation. Thus the recognition of personhood from implantation could cause at least as many if not more deaths than an insistence on personhood from fertilization.
It is therefore clear that an amendment which recognizes personhood from fertilization is superior to the recognition of personhood from implantation in every way. It is scientifically sound, logically valid, philosophically correct, morally just and politically expedient. I am determined to fight for this view of personhood at all costs, and I sincerely hope that you will join me. Let us rally together around the truth knowing that the truth alone has the power to guarantee freedom to ourselves and our posterity.
[1] David K. Gardner, et al., "Culture and transfer of human blastocysts increases implantation rates and reduces the need for multiple embryo transfers," Fertility and Sterility, Volume 69, Issue 1, January 1998, Pages 84-88
[2] Buenaventura Coroleu, et al., "The influence of the depth of embryo replacement into the uterine cavity on implantation rates after IVF: a controlled, ultrasound-guided study " Human Reproduction, Volume17, Issue2, Pages 341-346
[3] http://www.personhoodinitiative.com/debate-8.html
[4] Keith L Harrison, et al., “Oocyte cryopreservation as an adjunct to the assisted reproductive technologies,” Medical Journal of Australia 2007; 186 (7): Page 379
[5] Jessica D. Kresowik, et al., "Five-years of a mandatory single-embryo transfer (mSET) policy dramatically reduces twinning rate without lowering pregnancy rates," Fertility and Sterility, accessed November 11, 2011, doi:10.1016/j.fertnstert.2011.09.007
[6] 56% in hospitals, clinics or medical facilities and 19% in nursing homes. “New Study of Patterns of Death in the United States,” accessed November 11, 2011, http://www.cdc.gov/nchs/pressroom/98facts/93nmfs.htm
[7] C. Moreau, et al., “Contraceptive failure rates in France: results from a population-based survey,” Human Reproduction, Volume 22, Issue 9, Pages. 2422-2427.
A French study was used for this comparison instead of an American study because the French have similar rates of contraceptive failures (21.5% as compared to 23.5% in America) and because the rates given in all the American studies that I was able to find have been “corrected” to account for “underreporting.”
[8] Walter L. Larimore, MD; Joseph B. Stanford, MD, MSPH, “Postfertilization Effects of Oral Contraceptives and Their Relationship to Informed Consent,” Arch Fam Med. 2000;9:126-133, accessed November 13, 2011, http://archfami.ama-assn.org/cgi/content/full/9/2/126
In the wake of the attempt to pass a Personhood Amendment in Mississippi, there have been many who have come forward with the suggestion that the Personhood movement is in need of a different approach. It is suggested that we not seek personhood for all human beings from the moment of fertilization but rather seek that noble status for all human beings from the moment of implantation. Currently, this suggestion is proving to be a very polarizing thought within the pro-life community. Those making the suggestion accuse those rejecting it of being willing to let thousands of innocent children lose their lives by sacrificing the good in order to vainly strive for the best. Those who oppose this suggestion accuse those presenting it of being weak in the faith and lacking the backbone to stand for what they know to be right. I have many, wise friends on both sides of this debate, and that has given me a unique perspective that I believe will prove beneficial to all of us.
There are three reasons that are typically given for recognizing personhood as beginning at implantation. The most common of those reasons is the claim that only about half of the embryos that enter the womb will actually implant and continue to grow. The second claim that we will consider is the claim that recognizing personhood as beginning at a point prior to implantation would bring an end to in vitro fertilization (IVF) treatments. The final claim is that if we recognize personhood as beginning prior to implantation, then it will outlaw most birth control methods. There is a fourth argument that is occasionally, though very rarely, presented which I will mention shortly, but for now, let’s take a look at the three arguments that are most commonly heard in favor of this change to the personhood language.
The first argument is false on at least two levels. To begin with, it is obvious that this claim is based on a complete assumption. There is no way to know that fertilization has occurred inside of a woman’s body unless that fertilization takes place in front of a camera placed within her fallopian tubes. I am not aware of any study which has inserted cameras into the tubes of a large number of women in order to observe the number of fertilizations and subsequent implantations so that a rate at which implantation occurs can be calculated.
The only scientific support for this first argument comes from studies of the successful implantation of embryos created through the process of IVF. However, there are a number of factors affecting implantation rates in IVF treatments that do not occur in natural pregnancies. Such factors as the day on which the embryo is transferred into the mother’s body[1] and even the depth at which the embryo is inserted[2] have been shown to significantly affect the outcome of the IVF treatment. It would be ludicrous to assume that these factors are present in natural pregnancies. Therefore, it is equally ludicrous to use calculations of average implantation rates for IVF as a statistic for the number of failed implantations in natural pregnancies.
The first argument fails on a philosophical level as well. The claim that many embryos fail to implant in the womb does not tell us anything at all about whether or not those embryos are living people. That is merely an arbitrarily chosen point in human development. We could just as easily claim that personhood should start at birth because of the significant number of miscarriages that occur every year. We could also say that no one is a person until his first tooth breaks through the gum since so many infants die without ever experiencing that particular biological change. In the same manner, we could set the definition of personhood at the first loss of a tooth or at puberty or even at the emergence of the first gray hair. Each of these is a stage of biological development that a significant portion of the world’s population never attains. It is unconscionable to claim that only those who have gray hair are really people, but that is no different from claiming that only those who have successfully implanted in the womb are really people. Both claims are equally invalid.
The second reason given for setting the recognition of personhood at implantation instead of fertilization is based on the assumed effect that the earlier recognition would have on the practice of in vitro fertilization. This argument was used quite frequently in Mississippi with the blog Parents Against MS 26 leading the charge in claims that the Personhood Amendment would be the death knell of IVF in that state. In a debate between myself and Atlee Breland, the founder of Parents Against MS 26, I highlighted a major flaw in this argument:[3]
The most common method of IVF treatment involves harvesting a large number of eggs and initiating fertilization for all of them. After a few days, two or three of the newly formed embryos are then selected for implantation and the rest are either frozen for later use, sacrificed in scientific research or discarded. Eventually, a large number of the frozen embryos are also either sacrificed in scientific research or discarded. This method of IVF treatment would be outlawed if personhood is recognized as beginning prior to implantation for the simple reason that it involves killing innocent human embryos.
However, this is not the only method of IVF treatment available. One year after the above method demonstrated its first success, another method became available[4] which has actually proven to be even more successful.[5] In this alternative method, a large number of eggs are harvested, but only one of them is fertilized and transferred into the mother’s womb. The remaining eggs, as opposed to embryos, are frozen to be used or discarded at a later time. This process of utilizing single embryo fertilization and oocyte cryopreservation would still be permitted because it does not involve the killing of any human embryos. This method, however, would not generate the alternative revenue stream that is enjoyed by those IVF clinics who sell their unused embryos to be destroyed through scientific experimentation.
The challenge could still be raised, however, that recognizing personhood as beginning at fertilization would put doctors and IVF clinics at risk for prosecution over any embryonic deaths that may occur during this process. This is a valid concern, but the risk of prosecution for embryonic death would be no greater than that which already exists in every hospital today. According to the National Center for Health Statistics, seventy-five percent of all the deaths in America occur in a medical facility or nursing home.[6] Death is a common occurrence within our nation’s hospitals and clinics, but only those doctors who directly cause the death of their patients through either malicious intent or criminal negligence are in danger of criminal prosecution. The same would be true of IVF clinics if personhood is established at fertilization.
The third opposition to establishing personhood at fertilization is also decidedly false. Recognizing personhood as beginning at fertilization would have very little effect on birth control. There are four different categories of birth control methods: psychological, surgical, physical and chemical. Personhood at fertilization would have no effect whatsoever on the first three and only a minor effect on the fourth.
All of the methods in the first three categories work to prevent pregnancy by preventing the sperm from reaching the egg. Psychological methods of birth control include abstinence, natural family planning and early withdrawal. The surgical methods include vasectomies, hysterectomies and tubal ligations. The physical methods include condoms, cervical caps, diaphragms and sponges. All of these methods work on the same principle of preventing the sperm from reaching the egg in order to prevent pregnancy. Since fertilization does not occur through the successful use of these methods, they would remain available if personhood is recognized as beginning at fertilization.
The objection may be raised that these methods are not as effective as the chemical solutions which make up the fourth category, but this objection is ill-founded. Abstinence, of course, is completely effective. Apart from IVF treatments, a woman cannot become pregnant without intercourse. The surgical methods follow in a close second with effective rates exceeding 99%, and the physical methods are effective more than 95% of the time. The other psychological methods fare the worst, ranging from 90 – 93% in effectiveness. In comparison, the most common chemical method, the pill, has an effectiveness of 97.6% which places it on an equal plane with the physical methods.[7] Obviously, the question of effectiveness is without any real foundation.
The chemical methods of birth control include the pill, the patch, the implant, the IUD and Plan B. Most of these methods claim to operate in the same way as the methods in the other categories by preventing the sperm from reaching the egg. However, these methods have also been shown to have a secondary effect which prevents the implantation of the embryo in the womb thereby causing either the death of the embryo or an ectopic pregnancy.[8] The presence of this secondary effect could cause these methods of birth control to be illegal if personhood is recognized from the moment of fertilization.
The claim that recognizing personhood from fertilization would outlaw most birth control methods is decidedly false. It would only affect one of the four categories of birth control and would only do so for as long as the methods in that category continue to have a secondary effect which is harmful to embryonic humans. If a chemical birth control is developed which does not have any secondary effects on the embryo, then that method would be entirely permissible. Even without chemical birth controls, however, there are still many equally if not more effective methods of birth control that would remain available.
As mentioned previously, there is a fourth argument for recognizing personhood from implantation instead of fertilization, and that is the argument of expediency. Those presenting this argument claim that recognition of personhood from fertilization is too radical of a change to have any hope of success in today’s political climate whereas personhood from implantation seems to have a much higher level of support. They argue that we should first support an amendment that is capable of passing and then begin working on an additional amendment which would implement the ideal understanding of personhood.
This is actually a legitimate argument founded on what seems to be sound political strategy. The recognition of personhood as being present from at least the moment of implantation is a view that is made morally acceptable by virtue of the phrase “at least.” By eliminating the contention over in vitro fertilization and birth control, this view of personhood could generate enough support to be signed into law. Unfortunately, the soundness of the strategy ends at that point.
The second half of this strategy would never be implemented. The difficulty of passing an amendment which recognizes personhood from fertilization will not be diminished by the passage of a personhood at implantation amendment. If anything, it will be increased. The three objections dealt with above would still apply. The same people and organizations who oppose personhood at fertilization now would still oppose it then, and they would most likely oppose it more vigorously. Plus, this strategy would give many of those who reluctantly support personhood at fertilization an opportunity to reject that view while still salving their consciences. Implementing the first part of this strategy, therefore, would serve to motivate our opponents while placating our supporters, and that is not a winning strategy.
Some may object to this conclusion by claiming that a hopeless insistence on recognizing personhood from fertilization will allow the death of millions of children who could have been saved by the recognition of personhood from implantation. This objection is itself an argument against the implantation approach, for if personhood from fertilization is hopeless now, then how can it be less so if we only recognize personhood from implantation. Furthermore, the objection is spurious in that a recognition of personhood at implantation would generate increased usage of the morning after pill as well as an increase in embryonic experimentation. Thus the recognition of personhood from implantation could cause at least as many if not more deaths than an insistence on personhood from fertilization.
It is therefore clear that an amendment which recognizes personhood from fertilization is superior to the recognition of personhood from implantation in every way. It is scientifically sound, logically valid, philosophically correct, morally just and politically expedient. I am determined to fight for this view of personhood at all costs, and I sincerely hope that you will join me. Let us rally together around the truth knowing that the truth alone has the power to guarantee freedom to ourselves and our posterity.
[1] David K. Gardner, et al., "Culture and transfer of human blastocysts increases implantation rates and reduces the need for multiple embryo transfers," Fertility and Sterility, Volume 69, Issue 1, January 1998, Pages 84-88
[2] Buenaventura Coroleu, et al., "The influence of the depth of embryo replacement into the uterine cavity on implantation rates after IVF: a controlled, ultrasound-guided study " Human Reproduction, Volume17, Issue2, Pages 341-346
[3] http://www.personhoodinitiative.com/debate-8.html
[4] Keith L Harrison, et al., “Oocyte cryopreservation as an adjunct to the assisted reproductive technologies,” Medical Journal of Australia 2007; 186 (7): Page 379
[5] Jessica D. Kresowik, et al., "Five-years of a mandatory single-embryo transfer (mSET) policy dramatically reduces twinning rate without lowering pregnancy rates," Fertility and Sterility, accessed November 11, 2011, doi:10.1016/j.fertnstert.2011.09.007
[6] 56% in hospitals, clinics or medical facilities and 19% in nursing homes. “New Study of Patterns of Death in the United States,” accessed November 11, 2011, http://www.cdc.gov/nchs/pressroom/98facts/93nmfs.htm
[7] C. Moreau, et al., “Contraceptive failure rates in France: results from a population-based survey,” Human Reproduction, Volume 22, Issue 9, Pages. 2422-2427.
A French study was used for this comparison instead of an American study because the French have similar rates of contraceptive failures (21.5% as compared to 23.5% in America) and because the rates given in all the American studies that I was able to find have been “corrected” to account for “underreporting.”
[8] Walter L. Larimore, MD; Joseph B. Stanford, MD, MSPH, “Postfertilization Effects of Oral Contraceptives and Their Relationship to Informed Consent,” Arch Fam Med. 2000;9:126-133, accessed November 13, 2011, http://archfami.ama-assn.org/cgi/content/full/9/2/126