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On August 1, 2022, the Georgia Department of Revenue issued guidance that in light of the Dobbs opinion, as well as an 11th Circuit ruling in a case called Sistersong v Kemp, Georgia residents will be able to claim a tax exemption for any unborn child — $3,000 per (unborn) person!
In the July 20, 2022, Sistersong ruling, the 11th Circuit found that the new definition of “[n]atural person” in the 2019 Georgia legislation called the Living Infants Fairness and Equality (LIFE) Act — and now codified in GA. Code § 1-2-1 — could include an “[u]nborn child” as “a member of the species of Homo sapiens at any stage of development who is carried in the womb,” and that such a definition was not unconstitutionally vague. As a result, Georgia could ban many abortions that had previously been constitutionally protected under pre-Dobbs case law.
Of course, if fetuses are persons in Georgia, that has reverberating effects. For instance, multiple news sources reported that Georgians can now claim “embryos” as tax deductions. That is, technically, a true statement. Under a number of definitions of an “embryo,” such as this medical dictionary one explaining that an “embryo” is “a new organism in the earliest stage of development. In humans, this is defined as the developing organism from the fourth day after fertilization to the end of the eighth week.”
This definition could include either an embryo frozen in a laboratory, or an embryo growing in a human uterus. But the Georgia Department of Revenue guidance does provide further clarification where, “at any time on or after July 20, 2022, and through December 31, 2022, a taxpayer has an unborn child (or children) with a detectable human heartbeat (which may occur as early as six weeks’ gestation), the taxpayer may claim a dependent personal exemption.”
Phew! For a minute there, those headlines suggested that embryos, like those created through in vitro fertilization (IVF) and cryopreserved in a lab, might be considered “persons.” For those patients with a number of embryos (think 10 or 20), that could be an impressive tax deduction! Sorry to disappoint the taxation=theft crowd.
But the implications are still worrisome, to say the least, especially in the context of a growing body of anti-abortion legislation throughout the country that is also appearing increasing anti-IVF.
I spoke with attorney Catherine Tucker, a New Hampshire-based assisted reproduction law practitioner who also works with my surrogacy agency in New England, about her work with organizations like Fertility Within Reach to prepare for and combat new legislation that threatens access to fertility care. Tucker explained that while some anti-abortion legislation may have accidental effects on IVF, other legislation is actually intentionally targeting assisted reproductive technology.
Goodbye, Choice. Hello, Others Raising Your Genetic Children.
Tucker explained that the many significant implications to personhood legislation, for instance, include embryos. One major concern was that any legislation that defined an embryo as a person was likely to prohibit discarding or other destruction of embryos. For those who have gone through IVF, it is not uncommon to have a number of embryos remaining and a hard choice as to their disposition.
Usual disposition options include discarding, donation to science or research, or donation to others for conception purposes. With embryo personhood restrictions, the only realistic option may be donation to others for bona fide reproductive purposes. For many, embryo donation is a beautiful choice (check out these podcast episodes with EM•POWER and Embryo Connections). But for many others, they would prefer to have their embryos thawed and discarded, rather than brought to term and raised in other families.
Criminal Implications. As a former criminal prosecutor, Tucker is highly concerned about the criminal implications of personhood bills. If embryos become legally recognized as persons, could accidental embryo destruction (such as the failure of a storage tank) result in manslaughter charges for embryologists and other fertility professionals? What about routine testing for chromosomal or genetic abnormalities? Although uncommon, some number of embryos are damaged in that process. Could testing become criminally prohibited, or at least chilled through tight restrictions? And if an embryo is not damaged in the testing process, but the testing reveals a significant adverse condition, are the parents allowed to consider that fact before conceiving with that embryo? Concerning stuff.
Fertility Treatment Inaccessibility. Tucker, a proud parent through assisted reproduction herself, further worries that embryo personhood laws could make IVF inaccessible as a family-building option. If legal restrictions prohibited cryopreservation of embryos (like in the United Arab Emirates pre-2020), would hopeful-parents-to-be become limited to forming only one embryo at a time ? IVF, where medical professionals generally attempt to form a batch of embryos with the hope that one may result in a child, is already exorbitantly expensive and out of reach for many. A change in procedures to try for only one embryo each IVF round would multiply those costs.
What Can Be Done? Tucker has been working with advocacy organizations like Fertility Within Reach and Resolve New England to create educational material to help legislators understand the serious repercussions of personhood bills that include embryos pre-implantation.
While Georgia’s LIFE Act may have significant implications for reproductive healthcare, it doesn’t quite cross the line into limiting most fertility treatment and IVF access. Georgia assisted reproduction attorney Lila Bradley doesn’t see the Georgia legislature expanding the definition to include laboratory-located embryos any time soon.
But it is one more piece of legislation blurring the lines between pregnancy and pre-implantation embryos. And that line seems to be moving and blurring very rapidly.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.
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