Remember to Vote!

Your vote matters. Make sure you vote, and make sure you are knowledgeable about each political candidate’s position on the right to parent and reproductive choice. The outcome of this election could detrimentally affect the parental status of same sex couples as well as the ability of doctors to offer family building options through assisted reproductive technology (“ART”) to all hopeful parents. Please vote, and vote with knowledge!

The Right to Marry

Obergefell v. Hodges is the landmarkUnited States Supreme Court decision that held that the fundamental rightto marryis guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the of the Fourteenth Amendment. The decision nullified bans on same-sex marriage as well as failure to recognize same sex marriages performed in another state. Same-sex spouses should now have the same rights and benefits as legally married, opposite sex couples. However, there is still much work to be done. Many state court judges and legislators have argued that legal parentage is tied to biology, and regardless of the Obergefell decision, same sex parents do not have equal rights as opposite sex parents with respect to their children. The outcome of the current election may affect not only the application of Obergefell but whether or not the Obergefell decision will be overruled.

The Democratic and Republican platforms differ drastically on this issue. The Democratic platform supports the Obergefell decision and pledges to continue to work to ensure equality to parents of all children, regardless of gender or sexual preference. The Republican platform seeks to overrule Obergefell, either through judicial reconsideration or a constitutional amendment. Specifically, the platforms of each Party state the following:

Democratic Party Platform:

“Democrats applaud last year’s decision by the Supreme Court that recognized that LGBT people—like other Americans—have the right to marry the person they love.”

We will address the discrimination and barriers that inhibit meaningful access to reproductive health care services, including those based on gender, sexuality, race, income, disability, and other factors.”

Republican Party Platform:

The data and the facts lead to an inescapable conclusion: Every child deserves a married mom and dad... Our laws and our government’s regulations should recognize marriage as the union of one man and one woman and actively promote married family life as the basis of a stable and prosperous society. For that reason, as explained elsewhere in this platform, we do not accept the Supreme Court’s redefinition of marriage and we urge its reversal, whether through judicial reconsideration or a constitutional amendment returning control over marriage to the states.

Personhood Legislation and the Right to Assisted Reproductive Technology

Personhood initiatives and/or legislation seek to create laws that define a fertilized egg as a person, possessing all the legal and constitutional attributes and privileges of a living person Although the main objective of Personhood legislation is to limit a woman’s right to choose (under Personhood laws, an abortion is akin to murder), what many do not understand is that all other reproductive choices and fertility treatments could be affected as well.

The Republican Party Platform seeks to amend the Constitution with a ‘human life amendment’, which would provide protection to human life before birth (i.e., a fetus). Specifically, the platform states: “The Constitution’s guarantee that no one can “be deprived of life, liberty or property” deliberately echoes the Declaration of Independence’s proclamation that “all” are “endowed by their Creator” with the inalienable right to life. Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life, which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.

Such a radical change in the law could greatly restrict the ability of doctors to treat patients suffering from infertility.

The Democratic Party Platform states “Democrats are committed to protecting and advancing reproductive health, rights, and justice... We believe that reproductive health is core to women’s, men’s, and young people’s health and well-being….We will address the discrimination and barriers that inhibit meaningful access to reproductive health care services, including those based on gender, sexuality, race, income, disability, and other factors.”

Personhood laws would produce so many legal uncertainties about the status of embryos that it would be difficult or impossible for reproductive endocrinologists to treat infertility patients using long-established assisted reproductive treatments.

The Centers for Disease Control and Prevention estimates there are 7.4 million people affected by infertility in the U.S. (Centers for Disease Control and Prevention, National Center for Health Statistics, “National Survey of Family Growth,” (2002)). Many of these individuals and couples

will pursue in vitro fertilization (IVF), a process whereby a woman’s eggs are removed and fertilized with sperm in a lab with the intent of creating embryos to be transferred back to the intended mother or to a gestational surrogate to attempt to achieve pregnancy and the birth of a child.

Sometimes more embryos are created than can be safely transferred to the intended mother or surrogate. These extra fertilized eggs are often cryopreserved (frozen) and can be used by the intended parents in the future should the initial transfer not result in pregnancy, or should a miscarriage occur.

Under the Personhood legislation each frozen embryo will be considered a person by law, with all of the rights and protections afforded to all human beings. What does this mean for IVF treatments or frozen embryos? What if cryopreserved embryos do not survive the thawing process? Has the laboratory technician committed a crime? If an embryo is purposefully transferred to a woman with a uterine abnormality, and she later miscarries, has she committed some form of manslaughter or murder? Is the physician who performed the IVF with knowledge of her medical condition a co-conspirator?

There are also other issues raised by Personhood legislation unrelated to the specific act of reproduction. Must a woman report her miscarriage to the state? Should the state issue a ‘death certificate’ for a transferred embryo that does not result in a pregnancy? If an embryo is a person, should it be counted in the United States census? Should a family be entitled to claim embryos as dependents on their taxes? Although these examples may seem extreme, how will the government decide which rights, liberties and protections are afforded to embryos?

As you can see, the outcome of this election may determine the future of marriage and family building equality, assisted reproduction (including IVF), donor egg, donor sperm, embryo donation and embryo disposition, and a woman’s right to choose. The stakes are too high to stay home. Please educate yourself about the issues, and vote!

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