There is no shortage of you-can’t-make-this-up scenarios playing out in the wake of the overturning of Roe v. Wade. We rolled our eyes at — but kind of admired — the Texas woman, 34 weeks’ pregnant, who declared her fetus a passenger after getting pulled over for driving in an HOV lane. The Transportation Department’s code in Texas may not have language that recognizes a fetus as a person or a passenger, but driver Brandy Bottone argued that it should “in light of everything that’s happened”.
Former Los Angeles County prosecutor Loni Coombs told CNN at the time that she wasn’t much surprised by Bottone’s argument. “If we’re talking about a fetus being a person, there’s a lot of other rights that attach to being a person that will be litigated in the courts, such as, does my fetus qualify for a tax deduction? Does my fetus qualify for citizenship? Does my fetus qualify for child support?” she said. “These are all issues that are going to be raised and probably litigated in the courts.”
And so it began to happen. Georgia now has a “fetal personhood” provision that allows for a $3,000 tax exemption. Get knocked up, and if you’re six weeks’ pregnant on or after July 20 through December 31, 2022, your fetus counts as a dependent on Georgia state tax returns, starting next year.
Enter the new dystopia at your own peril. And untold possibilities for nightmare fallout. By this, I don’t mean merely having to pay double to go to the movies. I mean unthinkable things, like desperate or destitute individuals intentionally baby-making to get 3,000 bucks, and then taking a hanger to the vagina. With 13.3 percent of Georgia residents living in poverty, don’t tell me someone’s not going to think about it.
Call me jaded, but I’m thinking attaching money to a developing fetus is a ploy to cement the legitimacy of its “personhood” in the collective mindset. It appears to lend validity to this assault on women’s rights. You know, the way a contract gains validity when money is exchanged. Holy Delivery! This is starting to look like a downright bribe.
While Supreme Court Justice Samuel Alito said the decision to reverse Roe was “not based on any view about when a state should regard prenatal life as having rights or legally cognizable interests”, it absolutely set the stage for fetal personhood rights. How could it not?
If you’re still reading this, you’ve probably already concluded, as I have, that these (mostly) men lording over women’s bodies were never concerned about women. Or women’s actual bodies. Women weren’t involved with the drafting of our Constitution, which for some inexplicable reason is typically held with the sort of regard you’d reserve for a piece of infallible religious doctrine. Abigail Adams might have told her husband to “remember the ladies”, but John Adams poked fun while he drafted the document. “As to your extraordinary code of laws, I cannot but laugh… Depend upon it, we know better than to repeal our masculine systems… you know they are little more than theory,” he said.
Well, theory, we now know, can lead to practice.
“If you think the movement is limited to fetuses that have attained the possibility of viability outside the womb — around 23 to 25 weeks — you are extremely wrong. Fetal personhood is the idea that every fertilized egg is entitled to full protections of the law, and is a Constitutionally-protected entity separate from the pregnant person,” writes Attorney Lisa Needham in Balls and Strikes.
At the core of Georgia’s revenue play is the Living Infants Fairness and Equality (LIFE) Act, signed into law in 2019. It added “fetal personhood” and “fetal heartbeat” language that effectively bans abortions from six weeks’ gestation onwards. This act was ruled unconstitutional in 2020, but Georgia got the green light in July 2022. The “heartbeat”, by the way, is some slick marketing. It doesn’t exist, since there is no developed heart in a six-week-old embryo; rather, what’s there is an embryo tube beginning to generate electrical impulses – the sound that is heard is generated by the ultrasound machine.
While the new ban doesn’t specifically target embryos created outside the womb (yet!), the implications of these ‘personhood’ laws are alarming. Consider in vitro fertilization (IVF). Sperm meets egg. Fertilization. Voila! An embryo – or two, ten or…how many that we might now need to preserve into perpetuity?
If an embryo shows abnormalities that could result in a miscarriage, or defects that point to a lifetime of severe and painful disabilities, will women be forced shepherd it to birth? What happens to embryos that prospective parents no longer need?
There are already custody battles. In 2017, Sofia Vergara filed a legal doc to block her ex, Nick Loeb, from using their frozen pre-embryos; in 2021, a judge ruled against Loeb’s bid to gain full custody of the embryonic assets. This, before we had to worry that embryos might end up with more rights than some humans – humans who actually went through the trouble of being born!
It’s not a stretch to think that the government might one day assert control over embryos, as has been done with weeks-old fetuses who have now been assigned personhood. Will discarded embryos eventually require guardianship?
It is not legal to create embryos for research, but it is legal to use embryos discarded from IVF. Until now, that was an excellent way for people who had had success with IVF to help contribute to potentially life-saving medical research.
But in redefining personhood, biomedical research stands to take a hit if that use of embryonic stem cells gets called into question. With their amazing potential to become other types of cells, stem cells offer great promise for a range of therapeutics. In 2016, a 21-year-old man became paralyzed from the neck down after a car crash; thanks to years of research and a clinical trial in which doctors injected stem cells into his spinal column, Kris Boesen regained use of his upper limbs.
The National Institutes of Health (NIH) funded more than $2 billion in stem cell research in fiscal 2021; of this, $309 million for embryonic stem cell research. Right about now, scientists would be right to worry about potential reductions in human embryonic stem cell lines. Embryos are destroyed in the process of making cell lines for research; the prospect of their destruction – should they be assigned personhood like fetuses, could open a Pandora’s box of criminality. After all, when you intentionally kill a real person, that counts as homicide.
James M. Wells, PhD, Professor at Cincinnati Children’s Hospital Medical Center, was involved in the early days of helping to shape the future of this type of research. “The extensive investment in research…is now paying off therapeutically for patients with diabetes, blindness, and soon Parkinson’s,” he explained by email. “All of this was possible because of one simple fact: that politicians from both sides of the aisle decided to work together and come up with a compromise to allow for federal funding of embryonic stem cell research. They did this because they recognized the potential benefit of this research to ease human suffering.”
It is not impossible that in this new and dangerous society, the very existence of embryos will demand that they be mandated the right to be born. And who, exactly, will carry them?