AG opinion: Disposal of human embryos not transferred to uterus doesn’t violate law

The disposal of fertilized human embryos that haven’t been transferred to a woman’s uterus does not violate the state’s Human Life Protection Act and isn’t punishable as a “criminal abortion,” according to the Tennessee attorney general.

The state’s new law, which took effect in August after the U.S. Supreme Court overturned Roe v. Wade, applies only when a woman has a living unborn child in her body, Attorney General Jonathan Skrmetti said in an Oct. 20 opinion.

Responding to a question from Senate Majority Leader Jack Johnson, Skrmetti says under the law to “perform an abortion,” a person must use an “instrument, medicine, drug, or … other substance or device with intent to terminate the pregnancy of a woman known to be pregnant” and within the law’s meaning, a woman must have “a living unborn child within her body.” 

The opinion said that disposing of an embryo “that was created outside a woman’s body and that has never been transferred to a woman’s body thus does not qualify as ‘abortion.’”

“Such an embryo may fit the Act’s definition of ‘[u]nborn child,’ … but the Act does not prohibit the embryo’s disposal unless and until it is ‘living … within’ a woman’s body,” Skrmetti’s analysis says.

The legal opinion could represent a bit of a shift for some lawmakers who believe life begins at conception.

Johnson’s office said Tuesday a constituent requested the opinion because of uncertainty by her and her physician that disposing of an embryo that’s been fertilized could violate the state act. The law is known as the “trigger ban” because it outlawed abortions in Tennessee once the high court struck down the 1973 federal law that gave women the right to have an abortion.

Johnson, a Franklin Republican, was unavailable for comment Tuesday but said in a statement, “I was contacted by a constituent who was currently undergoing (in vitro fertilization) treatment. There was confusion as to whether or not she would be able to dispose of her excess fertilized embryos under the new abortion law. While I felt the law was clear, I was more than happy to ask the Attorney General for his opinion to clear up any perceived misunderstanding in the law and was pleased that the Attorney General arrived at the same conclusion.”

The “trigger ban” has set off a statewide debate over whether changes need to be made to clear up numerous questions about the act.

House Minority Leader Karen Camper called the opinion a “victory” and “significant ruling” for Tennessee women “struggling with infertility” and their physicians who won’t face criminal charges when trying to “bring miracles to families.”

“But while this is good news,” the Memphis Democrat said, “it is my hope that when the Legislature reconvenes in January that we will examine other aspects of the Human Life Protection Act and end the criminalization of doctors for upholding their oath and have serious discussions about exceptions for rape and incest.”

Tennessee’s abortion law does not provide exceemptions for rape or incest and also sets up an “affirmative action” defense in which a doctor who treats a woman for a problem such as an ectopic pregnancy can be charged with a felony and must show proofprove in court that the abortion was necessary to save the mother’s life.

State Sen. London Lamar, a critic of the abortion law, agreed that disposal of embryos should not be considered an abortion and questioned whether an embryo is a fetus. Initially, the state passed a law that banned abortions at about six weeks.

Lamar is adamantly opposed to the ban and raised concerns about the lack of a clear definition for what is considered an abortion as well as several “unintended consequences” she said the law caused.

“We are putting doctors in a very precarious situation because for those who want to execute care in this situation or women who have ectopic pregnancies or not viable pregnancies, they are finding themselves in a difficult situation because they are too scared to execute what they think is best for the woman,” said Lamar, a Memphis Democrat. 

Not only does the Legislature need to change the section of the law dealing with the life of the mother, it needs to make exceptions for rape and incest, especially since the state’s lag time for a sexual assault kit can last up to a year.

State senators, including Republican Sen. Richard Briggs, R-Knoxville, are considering filing legislation in January to change the Human Life Protection Act and potentially separate medical emergencies dealing with pregnancies from “elective” abortions, enabling. Such a move could enable doctors to treat women without facing the dilemma of being presumed guilty for performing an abortion or violating their oath to meet a standard of care for patients.