When the New Hampshire legislature amended HB 217 to change the proposed fetal murder and homicide charges to apply only to fetuses of 24 weeks gestation and beyond, many politicians and advocates believed the bill was unlikely to have much effect on reproductive rights.

But a new definition in the final bill heading to the senate has infertility advocates concerned that it could undermine the willingness of doctors in the state to provide in vitro fertilization services — a change that could stop many families from having the children they have always dreamed of.

The issue, according to Resolve New England, an infertility information, support, and advocacy group, is that the senate judiciary decided to change the bill as means of granting person-hood rights to fertilized eggs through the back door.

In this section:

(1) “Conception” means the fusion of a human spermatozoon with a human ovum.
(2) “Pregnant” means the female reproductive condition of having an unborn child in the woman’s body.
(3) “Unborn child” means the offspring of human beings from conception until birth.

By adding the amendment redefining a person, suddenly IVF is pushed into a murky, uncertain place in which doctors may or may not be opening themselves up to criminal charges. 

The original language in HB 217 reviewed by the senate judiciary committee limited the charge of “murder or homicide” to cases of at least 24 weeks gestational age, and provided an exception to “any medical procedure performed by a licensed medical professional at the request of a pregnant woman or her legal guardian, or to the dispensing or administration of any prescribed medication.”

But the committee removed the 24-week gestation language, and added a larger section defining when the charge of murder would not be applied:

V.(a) Nothing in this section or RSA 630:1-b, RSA 630:2, RSA 630:3, or RSA 630:4 shall apply to any act committed by the mother of the unborn child, to any medical procedure, including abortion, performed by a physician or other licensed medical professional at the request of the pregnant woman or her legal guardian, or to the lawful dispensation or administration of lawfully prescribed medication. For the purposes of this section and RSA 630:1-b, RSA 630:2, RSA 630:3, or RSA 630:4, “abortion” means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will, with reasonable likelihood,
cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to save the life or preserve the health of an unborn child, or to remove a dead unborn child caused by spontaneous abortion, or to remove an ectopic pregnancy.

The problem, according to Keiko Zoll, Communications Director of Resolve New England, is that the new language, which covers almost every possible objection one could have with the law, ignores an important fact — pregnancy doesn’t begin at conception, which leaves women undergoing IVF in a lurch.

“Acts in the course of medical treatment by doctors and embryologists at IVF medical practices would not be protected from the operation of this bill,” said Zoll. “The only medical treatments that are exempted are those performed ‘at the request of the pregnant woman.’ By definition, the woman having infertility treatments is not ‘pregnant.'”

Erin Lasker, Resolve’s Executive Director, believes that the intention was not likely malicious, but careless, another example of legislators not being entirely aware of how attempts to legislate medical definitions can get in the way of medical best practices and health care.

“I honestly don’t think the legislators are thinking about IVF.  That is why they are referring only to a pregnant woman. And technically someone going through IVF is not pregnant when the sperm meets the egg.  I just think that if we don’t speak up that it could pass and have ramifications that the legislative body didn’t realize would occur.”

The legislature could easily fix this bill in a few simple ways — either through an amendment to specifically address the handling of embryos during infertility treatments, or by adding back the 24-week gestation language that was in the previous version. 

Resolve hopes that at least one of those changes occurs during the senate debate tomorrow, and urges people to speak out to the New Hampshire senate and remind them of the unintended effects that their bill could have on women already struggling to create the family so badly desire.