Infertility patients and doctors fear abortion bans could restrict IVF

Anna Nibley Baker, a mother of four in Salt Lake City, is reasonably sure she and her husband are done building their family. Yet for eight years, since the birth of her last child, conceived through in vitro fertilization, she has thought fondly of the couple’s remaining three embryos, frozen and stored in a university clinic.

Now, after the Supreme Court’s abortion ruling overturned Roe v. Wade, Ms. Baker, 47, like countless infertility patients and her doctors across the country, has become alarmed that the fate of those embryos is no longer hers to decide. If states prohibit abortions from conception, and do not distinguish whether fertilization occurs in utero or in the laboratory, the implications for routine infertility treatment procedures could be extraordinary.

In a cycle of IVF, a field of medicine that is over 40 years old and used by hundreds of thousands of heterosexual and same-sex couples, single people, and surrogate carriers in the United States, the hope is to create as many healthy embryos for each patient as possible. Doctors usually implant one or two of these embryos into the uterus and freeze the ones that remain for the patient’s future use.

Will patients like Ms. Baker be prevented from discarding unnecessary embryos and instead be encouraged to donate them for adoption or forced to store them in perpetuity?

If embryos don’t survive being thawed for implantation, could clinics face criminal penalties?

In short, many fear that the regulations on unwanted pregnancies could, unintentionally or unintentionally, also control people who long for a pregnancy.

Since the ruling, fertility clinics have been inundated with frantic calls from patients asking if they should, or even could legally, transfer frozen embryos to states with guaranteed abortion rights. Cryobanks and doctors have also been looking at red flag scenarios: A Texas infertility doctor asked if she should hire a criminal defense attorney.

Until now, the texts of the laws that come into force do not explicitly address embryos created in a laboratory. A new policy document from the American Society for Reproductive Medicine, which represents a variety of fertility treatment providers, has analyzed 13 so-called trigger laws and concluded that they pose no immediate threat to infertility patients and their care providers. medical. And in interviews, leading anti-abortion groups said that embryos created through assisted reproductive technology were not currently a priority.

But legal experts warn that as some states write laws, the status of these embryos, as well as that of patients and providers, could become vulnerable, especially if an ardent prosecutor decides to test new ground.

Barbara Collura, president of Resolve, which represents the interests of infertility patients, said the organization has seen numerous legislative efforts to assert state control over embryos. Those failed “because we fought and we also had the support of Roe v. Wade,” she said. “Obviously we don’t have that anymore. ”

Referring to the case in the ruling that overturned Roe, he continued: “So we think Dobbs is kind of a green light for those legislative zealots who want to take this one step further.”

By using the word “pregnancy,” most activation bans distinguish their target from an embryo stored in a clinic. The ban in Utah, where Ms. Baker lives, for example, frames abortion in the context of a “human pregnancy after implantation of a fertilized ovum,” which would exclude state jurisdiction over stored embryos. (That activation law is temporarily suspended.)

And the abortion legislation that the National Committee for the Right to Life presents as a model for state affiliates and legislators refers to “all stages of the development of the unborn child within the womb of a pregnant woman from fertilization to the birth”.

Representatives of four national anti-abortion groups said in interviews that they firmly believe that all embryos are human beings, but that regulating IVF embryos within abortion bans was not their first order of business.

“There is so much work to be done in so many other areas,” said Laura Echevarria, a spokeswoman for the National Right to Life Committee, citing parental notification laws and safety net programs for pregnant women and their families. “IVF isn’t even really on our radar.”

But Kristi Hamrick, a spokeswoman for Students for Life Action, a large national anti-abortion group, noted that IVF has recently become part of the conversation.

“Protecting life from the beginning is our ultimate goal, and in this new legal environment we are looking into issues like IVF, especially considering a business model that, by design, ends most lives conceived in a lab,” he said. .

Clinics are not required to report the number of frozen embryos they store, so it is impossible to determine a reliable figure in the United States. The most cited number, 400,000, comes from a 2002 RAND Corporation study, but the updated total would be much higher.

In the past year, Republican lawmakers in at least 10 states have proposed bills that would give these frozen embryos the legal status of “personality,” according to records kept by Resolve. None have passed. But policy analysts at the American Society for Reproductive Medicine said these laws, which give both embryos and fetuses the legal status of a living human being, “may become more common in the post-Roe world.”

Ms. Hamrick of Students for Life Action said “protection from conception” or “personhood” laws have a “bright future.”

And while the triggering bans generally define abortion in relation to pregnancy, the language in some resonates with concern in the world of infertility. Arkansas, for example, defines an unborn child as “an individual organism of the species Homo sapiens from fertilization to live birth.”

Sara Kraner, general counsel for Fairfax Cryobank, which operates embryo storage facilities in six states, said: “We don’t know how the states will interpret the language, and no one wants to be the test case. I can make a good case as to why the various bans do not apply to stored embryos, but I cannot guarantee that a judge will side with me if I am brought to trial.”

Sean Tipton, a spokesman for the American Society for Reproductive Medicine, predicted that patients and providers would face a prolonged period of uncertainty as lawmakers proposed laws and prosecutors tested them.

“It’s like Dobbs’ decision has taken the condom off,” Tipton said. “And if he’s practicing law without taking proper precautions, he’s going to make some mistakes.”

Although the threat posed by the upcoming abortion bans to infertility patients and providers is unclear, discussions about preventative measures are taking place. But each suggestion could prove problematic.

Judith Daar, dean of Northern Kentucky University’s Salmon P. Chase School of Law and an expert in reproductive health law, said passing a state law that would distinguish infertility patients from those seeking an abortion could have a discriminatory impact, “given that the majority of IVF patients are white, while women of color account for the majority of all abortions performed in the US.”

Some medical and legal experts have proposed another type of final execution: creating one embryo at a time by storing sperm and eggs separately and thawing them only to create individual embryos as needed. Strictly speaking, such an approach would avoid some of the potential legal problems posed by stored embryos and circumvent legal language that prohibits abortion after fertilization.

But such a practice would be inefficient, given the time and cost, as well as unethical, since the woman would have to receive medication and undergo a surgical procedure for each embryo transfer.

A third option, which has entered discussions between doctors and patients in recent years, is called “compassionate transfer.” A 2020 position paper from the American Society for Reproductive Medicine says the term refers to a patient’s request to transfer embryos into her body “at a time when pregnancy is highly unlikely to occur and when pregnancy is not It’s the intended result.” For people who see the frozen embryo as human life, a compassionate transfer is a kind of natural death for the embryo, rather than destroying it in a laboratory.

Katherine Kraschel, a reproductive health law expert at Yale Law School, noted that clinics could be forced to store embryos that embryologists have determined are unlikely to result in pregnancy.

“It could also mean that ‘compassionate transfer’ is recommended not to honor a patient’s moral assessment of their embryos, but because the state has imposed its moral assessment on them,” he said.

Ms. Baker, who is an adoptive mother as well as an IVF, feels deeply attached to her three frozen embryos. She is struggling to find a way forward, particularly now, as the Supreme Court’s abortion ruling casts a shadow over her future.

She can’t imagine donating them to another couple, letting strangers have and raise their children, a process many in the anti-abortion movement call “snowflake adoption.”

You cannot afford, financially or psychologically, to pay for your storage in perpetuity.

She’s also not ready to thaw them and, as she put it, “stop them on a plate.”

What matters to Ms. Baker, an intensive care nurse, is that she has the right to make decisions that she considers intimate and very individual. She doesn’t believe that she can have an abortion unless her life is in danger, but she also believes that her decision should be hers.

And that’s why he doesn’t want state legislators to designate the fate of his embryos.

“They are part of me,” Ms. Baker said. “No one but my husband and I should have the right to decide what happens to them.”

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