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Abstract: Embryonic personhood perversely threatens fertility patients’ chance at parenthood. The designation of personhood to genetic matter not only creates legal risks to fertility patients attempting to conceive but imposes artificial risk tradeoffs that undermine patients’ ability to balance medical risk with the chance at a viable pregnancy. As with any medical treatment, assisted reproductive technology (ART) involves risky tradeoffs. Participating in riskier techniques boosts the baseline likelihood of a viable pregnancy. Exploration of data on choices over fertility treatments demonstrates that patients routinely balance risks of embryo destruction and maternal side effects against the likelihood of a viable pregnancy in a reasonable manner. Current jurisprudence’s shift toward adopting embryonic personhood assumes a dominant role of embryo survival. This jurisprudence is a departure from how courts have balanced the right to pursue procreation with the right to avoid it.
This Article examines risk-risk tradeoffs that patients make in pursuing more aggressive forms of fertility treatments—such as multiple embryo transfers—that introduce a possibility of riskier multi-fetal pregnancies in exchange for higher likelihood of at least one viable pregnancy. Using national clinic-level data on patient choices over treatments with different risks, we exploit these revealed preferences to measure the relative willingness to accept such health risks in exchange for a viable pregnancy. The analysis reveals two results. First, the proportion of patients engaging in the riskier multiple embryo transfer is not different in states that have different professed policies limiting abortion access and establishing fetal personhood. The lack of different preferences over implanting multiple embryos for fertility patients based on symbolic (and not legally binding) laws suggests that such state laws do not reflect true preference differences for fertility patients and do not appear to have altered patients’ decisions. Second, patients’ behavior is inconsistent with a categorical approach to legal personhood. Patients evince a willingness to accept a riskier approach (implantation of multiple embryos) for a higher likelihood of one viable pregnancy based on their baseline conception rate (which declines with age). Their willingness to participate in this riskier procedure is statistically correlated with their baseline conception rate. This sensitivity of patient choice to baseline conception rate is consistent with patients making rational decisions within a risk-risk approach to fertility treatment. Fetal personhood laws that override patient preferences will change the number of successful pregnancies fertility patients are able to achieve and will change the way fertility treatment is administered.
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