Anti-choice lawmakers in Pennsylvania have taken recent attempts to implement fetal personhood legislation to a new extreme: A new bill moving through the state legislature would redefine fetal death to mean death at any point in pregnancy, starting at conception, and require health providers to cremate or bury all fetal remains unless the pregnant person chooses to handle disposal on their own.
The bill is written in a way that it would require providers to obtain death certificates not just for miscarriages and abortions, but even for fertilized eggs that don't implant in the uterus. It would subject anyone who fails to do so to a $50 to $300 fine, or up to 30 days in prison. Death certificates get filed to the state, though the bill says identifying information will remain confidential.
The “Pennsylvania Final Disposition of Fetal Remains Act,” or House Bill 1890, is modeled on legislation Vice President Mike Pence signed into law as Indiana governor in 2016, which requires miscarried or aborted fetuses to be buried or cremated. Fetal burial laws serve no medical purpose but add additional costs and regulations on abortion providers.
Yet in May, the U.S. Supreme Court upheld this provision of the Indiana law, which included several other restrictions on abortion, citing a precedent that granted state governments a “legitimate interest in proper disposal of fetal remains.”
The court’s ruling has given state lawmakers stronger grounds on which to argue for similar legislation—for instance, Texas attorneys recently asked an appeals court to review a ruling that blocked their fetal burial law—and, perhaps, encouragement to push the envelope.
The sponsor of the bill, Pennsylvania Rep. Francis Ryan, a Republican, maintains that the provisions in HB 1890 are “strictly voluntary for women” who want to be able to bury their own fetal remains, and don’t require a death certificate.
But reproductive health advocates say those claims are misleading. They argue that the language of the bill is deliberately vague, obfuscating an extreme proposal: that providers and hospitals treat fertilized eggs as they would the remains of pregnancies that end in the second trimester.
“The bill is written in a misleading way,” said Christine Castro, a staff attorney at the Pennsylvania-based Women’s Law Project. ”No, it does not explicitly mandate a death certificate. [But] it explicitly mandates a burial permit, and you need a death certificate to obtain a burial permit.”
“HB1890 is like a Russian doll,” she continued. “You have to keep unpacking it to see what’s really inside.”
To continue Castro’s metaphor, the smallest doll, nested within all of the others, might be the bill’s new definition of fetal death. Currently, Pennsylvania defines fetal death as the “expulsion or extraction” of a product of conception after 16 weeks' gestation. Ryan’s legislation, however, gets rid of the 16-week threshold, proposing that fetal death be any “expulsion or extraction from its mother of a product of conception, which shows no evidence of life after the expulsion or extraction.” The absence of any time marker, Castro said, means that the legal definition of “fetal death” would include fertilized eggs that don't implant if HB 1890 passed into law.
“‘Fetus’ is a word with a specific medical definition: It does not mean a blastocyst, or a two-week pregnancy,” Castro said. “It is not surprising that a bill that redefines a word to legally mean something it literally does not mean is also unclear about what it is seeking to accomplish.”
The medical reality of keeping track of—let alone disposing of—expelled fertilized eggs is dubious at best. According to experts, more than half of fertilized eggs never fully implant, meaning they don’t result in a pregnancy. And most people won’t know if they’ve passed one, and if they did, it’s unlikely they would be at a clinic or doctor’s office when it occurred. Yet the proposed law would require that such tissue be cremated or buried.
“Typically, fertilized eggs that do not implant would not be expelled in a medical facility,” said Kavita Vinekar, a Pennsylvania-based OB/GYN and fellow at Physicians for Reproductive Health. “It is very unlikely that someone would know that has happened.” It's also left unstated what would be required if someone miscarries at home—would the person need to preserve the remains to bury them?
It’s clear that the point of Ryan’s legislation isn’t to reflect accepted biological and medical facts, physicians say. Jennifer Conti, an OB/GYN in California, pointed out that the bill’s expanded definition of fetal death would also have implications for individuals and couples undergoing in-vitro fertilization, or IVF, which can involve several unsuccessful attempts to implant embryos in the process of getting pregnant.
“Anti-choice legislators are fools if they think science is selective,” Conti said. “You can't arbitrarily choose when and when not to apply facts. Science is science and embryos are cells of potential, not definitive life.”
Ryan contends that his legislation gives women and their families “a voice” in the decision about what happens to aborted or miscarried fetal remains: When his wife had a miscarriage in the 1970s, he said he was upset the hospital disposed of the fetal remains without asking him, even though, currently, patients have the ability to make their own burial arrangements if a hospital doesn’t accommodate them. But critics of the legislation say that not everyone wishes to be involved in that decision-making process, especially if they have lost a pregnancy they intended to carry to term.
“We received heartfelt emails from women telling us about their early miscarriages, how difficult they were, and how much worse it would have been were they forced to get a death certificate for a pregnancy that they understood so differently,” Democratic Pennsylvania Rep. Dan Frankel told PennLive.com. “It’s simply wrong to tell women what a loss of pregnancy is supposed to mean to them.”
The Republican-controlled Pennsylvania House passed the bill in a 123-76 vote earlier this week, and with a majority-Republican state Senate, it is likely to go to Governor Tom Wolf’s desk. Though Wolf, a pro-choice Democrat, has vowed to veto the legislation, a group of anti-choice Democrats could help their Republican colleagues override Wolf’s veto.
Physicians worry that, beyond the mandates HB 1890 would place on their work, the consequences would be much graver for their patients, who may internalize the stigma they say is baked into Ryan’s legislation.
“For my patients … this question is about arriving at the decision that is best for their needs, their families, and their belief systems,” Vinekar said. “The patients I care for are strong, loving, and resilient. They navigate the ‘gray’ areas of life with courage. Legislating these nuanced and deeply personal decisions strips my patients of their most basic human rights, their dignity, and their health care—that is the ultimate violation of personhood.”