The Perils of Prenatal Personhood

This past Tuesday, residents of Mississippi voted on a proposed amendment to the state constitution that would define life as beginning at conception. Part of a national campaign pushed by the pro-life organization Personhood USA, this ballot initiative would have defined a fertilized egg as a person with full legal rights.

Mississippi is the most conservative state in the nation, so many pro-life organizations viewed this attempt to severely restrict abortion rights as a ‘slam dunk’. Despite polls suggesting that this initiative would pass handily, and despite strong support from Republican and Democratic politicians across the state, voters thankfully rejected this attempt to define personhood as starting from “the moment of fertilization, cloning, or the functional equivalent thereof.”

This isn’t the last time we will see attempts to redefine life as starting from the moment of conception. Just hours after the Mississippi ballot initiative was defeated, Personhood USA promised to revive the issue in 2012, as well as to push for similar state-level initiatives in California, Florida, Montana, Nevada, Ohio, and Oregon.

Anti-abortion groups like Personhood USA see such initiatives as a way to overturn Roe v. Wade, the landmark 1973 Supreme Court case that legalized abortion in the US. While the Supreme Court has allowed states to impose some restrictions on abortion in recent years, it has largely rejected attempts to overturn Roe’s primary holding that any woman has a right to seek an abortion. During oral arguments in that case, however, Justice Potter Stewart warned the pro-choice plaintiffs that “if it were established that an unborn fetus is a person, you would have an impossible case here.” By legally redefining personhood as starting from the moment of conception, anti-abortion organizations hope to challenge Roe v. Wade directly.

Now philosophers have been debating the notion of personhood since time immemorial, and there are a great many people better suited than I to discuss such questions as ‘when does life begin?’. What I want to do is focus on is the scientific rationale and public policy implications of personhood amendments.

Personhood is, for the most part, predicated on notions of individuality. A person is a person because they are unique and enduring individual. Pro-life activists argue that  individual personhood thus begins at conception when the sperm and egg fuse to form a zygote that is genetically distinct from either parents. But there are a number of scientific flaws with this argument.

All human beings begin as fertilized eggs. However, not all fertilized eggs give rise to human beings. In fact, a significant percentage do not. Studies suggest that as many as one-half to two-thirds of all conceptions fail, either because the fertilized egg fails to develop properly or because it fails to implant in the uterine wall. Should we as a society now be expected to mourn these failed but largely unrecognized conceptions as the tragic loss of tens of millions of children, or simply accept this as an unfortunate biological reality?

Twinning can also occur after conception. About four in every 1000 fertilized eggs will divide to form two separate embryos, eventually giving rise to identical twins. Identical triplets and quadruplets, though rare, also occur. If personhood starts at the moment of fertilization when genetic individuality is established, how should we deal conceptually and legally with the possibility of twins and triplets?

Biological arguments aside, personhood amendments are bad from a public policy perspective. Had it passed, the Mississippi initiative not only would have made abortion illegal — even in cases of rape, incest or threat to the health and safety of the mother — but would have also banned most forms of birth control, such as the morning-after pill or the IUD. Hormonal birth control methods in particular are effective not only because they block conception but also because they prevent implantation of the egg in the uterine wall should fertilization accidentally occur. These two mechanisms of action cannot be separated, so use of the most commonly used forms of birth control would be likely be prohibited under existing personhood amendments.

In addition, and somewhat ironically, these personhood amendments would likely limit access to fertility treatments. For otherwise infertile couples desperate to conceive a child, the availability of certain artificial reproductive technologies — most notably in-vitro fertilization (or IVF) — would be severely curtailed.

Finally, defining personhood as beginning at conception raises a number of unexpected but unaddressed legal questions. Would the estimated 15% of women who miscarry be subject to investigation and possible prosecution, particularly if they were believed to have engaged in activities that can pose certain risks during pregnancy like smoking, drinking a glass of wine, or sipping a cup of coffee?

Personhood amendments are, quite frankly, a bad idea. Not only will they ban abortion outright, they will likely have unintended and far-ranging consequences for American women and their families by restricting access to family planning services, by banning many effective fertility treatments, and by placing couples who tragically lose a child to miscarriage in legal jeopardy.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on November 10, 2011. It is also available on the WAMC website.]

About Sean Philpott

A public health researcher and ethicist by training, Sean holds advanced degrees in microbiology, medical anthropology, and bioethics. He is currently Director of the Center for Bioethics and Clinical Leadership at Union Graduate College and Director of the Bioethics Program of Union Graduate College-Mt. Sinai School of Medicine. Until his term expired in August 2012, he served as Chair of the US Environmental Protection Agency’s Human Studies Review Board, an advisory panel that reviews the scientific and ethical aspects of research involving human participants submitted to the EPA for regulatory purposes.
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2 Responses to The Perils of Prenatal Personhood

  1. Sean, as you know, I read (and listen) to your work with great interest. And as you also know, I do not believe in abortion. And beyond that – I am not sure you know of my intent about that… My heart says to me always, along with my head, the world cannot solve moral problems with political solutions.

    Which is why you are not likely to find me pressing hard for the elimination of abortion law. (I’ll pay for this, I’m sure, but so be it… in other circles.) As a person of faith, I do not see this , or most things at all, as black and white. I don’t always see the “right answers” but I do always hope for the “right questions.” Even the word “right” sticks in my craw…

    We could change all the laws in the world, but if hearts and minds are not changed, I have a real problem with the whole mess – and I am speaking of way more than abortion here. Some law is appropriate in my mind, but we can keep eliminating things and yet not really dealing with the core issue.

    The personhood amendment was- and remains – overstated grandstanding to make a point. And I find that abysmal. As has happened before, I find myself more in agreement with someone like yourself – at least at large – over policy issues, even if our intent is not exactly the same. I do not ever mean this to co-opt your point of view as stated; I simply find it a reason to keep engaged and to keep with the questions more than the answers.

    Thank you.

    • Hi Fran,

      Thanks for the thoughtful comments.

      I do not believe that the pro-life and pro-choice camps have different goals … I personally do not know anyone who is “pro-abortion”. I think we would all prefer a world in which all pregnancies were wanted and selective terminations did not occur, except in extremely rare cases of health risks. The difference, as I see it, is in the approach that the two camps use (or sadly do not use) to achieve this shared goal.

      Best,
      Sean

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