Anna Nibley Baker, a mother of four in Salt Lake City, is pretty 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 tenderly of the couple’s three remaining embryos, frozen and stored at a university clinic.
Now, after the Supreme Court’s abortion ruling Roe v. Wade overturned, Ms. Baker, 47, like countless infertility patients and their doctors nationwide, became concerned that the fate of those embryos might no longer be hers to decide. If states ban abortions from conception—and do not distinguish whether conception occurs in the womb or in the laboratory—the implications for routine procedures in infertility treatment could be extraordinary.
In a cycle of IVF, a field of medicine more than 40 years old and used by hundreds of thousands of heterosexual and same-sex couples, singles and surrogates 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 those embryos into the uterus and freeze any that remain for the patient’s future use.
Will patients like Ms. Baker prevented from discarding unneeded embryos, and instead encouraged to donate them for adoption or forced to store them forever?
If embryos do not survive being thawed for implantation, could clinics face criminal penalties?
In short, many fear that regulations on unwanted pregnancies, unintended or not, may also control people who long for a pregnancy.
Since the ruling, fertility clinics have been flooded with frantic calls from patients asking whether they should, or even legally can, transfer frozen embryos to states with guaranteed abortion rights. Cryobanks and doctors also permeated due diligence scenarios: A Texas infertility doctor asked whether he should retain a criminal defense attorney.
So far, the texts of the laws coming into force do not explicitly target embryos created in a laboratory. A new policy document from the American Society for Reproductive Medicine, which represents a variety of fertility treatment providers, analyzed 13 so-called trigger laws and concluded that they do not pose an immediate threat to infertility patients and their health care providers. And in interviews, leading anti-abortion groups said embryos created through assisted reproductive technology are not a priority right now.
But legal experts warn that as some states draft legislation, the status of these embryos, as well as patients and providers, could become vulnerable, especially if an impassioned prosecutor decides to test the 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 back and we also had the backing of Roe v. Wade,” she said. “Of course we don’t have it anymore. “
Referring to the case in the ruling that overturned Roe, she continued: “So we feel that Dobbs is something of a green light for those legislative zealots who want to take it a step further.”
By using the word “pregnancy,” most trigger bans distinguish their target from an embryo stored in a clinic. The ban in Utah, where Ms. Baker dwells, for example, frames abortion in the context of a “human pregnancy after implantation of a fertilized egg,” which would preclude state jurisdiction over stored embryos. (That trigger law is on temporary hold.)
And the abortion legislation that the National Right to Life Committee holds up as a model for state affiliates and lawmakers refers to “all stages of the unborn child’s development within a pregnant woman’s womb from conception to birth.”
Read more about abortion issues in America
Representatives of four nationwide anti-abortion groups said in interviews that they firmly believe all embryos are human, but that regulating IVF embryos within abortion bans was not their first order of business.
“There is so much other work that needs to be done in so many other areas,” said Laura Echevarria, a spokeswoman for the National Right to Life Committee, referring to 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 major national anti-abortion group, noted that IVF has recently become part of the conversation.
“To protect life from the beginning is our ultimate goal, and in this new legal environment we are examining issues like IVF, especially considering a business model that, by design, most lives conceived in a laboratory , terminated,” she said.
Clinics are not required to report the number of frozen embryos they store, so it is impossible to confirm a reliable figure in the United States. The most commonly cited number, 400,000, is from a 2002 RAND Corporation study, but the updated total would be much higher.
Within the past year, Republican lawmakers in at least 10 states have proposed bills that would grant legal “personhood” status to these frozen embryos, according to records kept by Resolve. None passed. But policy analysts for the American Society for Reproductive Medicine said these laws, which give both embryos and fetuses the legal status of a living person, “could become more common in the post-Roe world.”
Ms Hamrick of Students for Life Action said that “conception protection” or “personhood” laws had a “bright future”.
And while the trigger ban usually defines abortion in relation to pregnancy, the language resonates uncomfortably with some in the infertility world. Arkansas, for example, defines an unborn child as “an individual organism of the species Homo sapiens from conception to live birth.”
Sara Kraner, general counsel for Fairfax Cryobank, which operates embryo storage facilities in six states, said: “We don’t know how states will interpret the language, and nobody wants to be the test case. I can make good arguments why the various prohibitions do not apply to stored embryos, but I cannot guarantee that a judge will side with me if I am taken to court.”
Sean Tipton, a spokesman for the American Society for Reproductive Medicine, predicted that patients and providers are in for a long period of uncertainty as lawmakers introduce laws and prosecutors test them.
“It’s like the Dobbs decision removed the condom,” Mr. Tipton said. “And if you practice law without taking proper precautions, you’re going to make some mistakes.”
Although the threat the upcoming abortion ban poses to infertility patients and providers is unclear, discussions are ongoing about preventative measures. But every proposal can be problematic.
Judith Daar, dean at the Salmon P. Chase College of Law at Northern Kentucky University and an expert on reproductive health law, said that passing a state law that would differentiate infertility patients from those seeking an abortion would be a can have 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 end-run: creating one embryo at a time by storing sperm and eggs separately and only thawing them to create individual embryos as needed. Strictly speaking, that approach would avoid some of the potential legal issues posed by stored embryos and sidestep statutory language prohibiting abortion after conception.
But such a practice would be inefficient, given the time and cost, as well as unethical, since the woman would have to be medicated and undergo a surgical procedure for each embryo transfer.
A third option, which has come into discussions between doctors and patients only in the last few years, is called “compassionate transfer.” A 2020 position paper by the American Society for Reproductive Medicine says the term refers to a request by a patient to transfer embryos into her body “at a time when pregnancy is highly unlikely to occur, and when pregnancy is not the intended outcome is not.” For people who see the frozen embryo as human life, a compassionate transfer is a kind of natural death for the embryo, rather than having it destroyed in a laboratory.
Katherine Kraschel, an expert on reproductive health law at Yale Law School, noted that clinics could be forced to store embryos that embryologists have determined are unlikely to result in a pregnancy.
“It could also mean that ‘compassionate transfer’ is recommended not to honor a patient’s moral valuation of their embryos, but because the state has imposed its moral valuation on them,” she said.
Ms Baker, who is a mother through adoption as well as IVF, feels deeply attached to her three frozen embryos. She is struggling to find a way forward, especially now, as the Supreme Court’s abortion ruling casts a shadow over their future.
She can’t imagine donating it to another couple, and in effect having strangers bear and raise her children, a process many in the anti-abortion movement call a “snowflake adoption.”
She cannot financially or psychologically afford to pay for their storage forever.
Nor is she ready to have them thawed and, as she put it, “arrested in a dish.”
What matters to Ms. Baker, a critical care nurse, is that she has the right to make choices that she considers intimate and highly individual. She doesn’t believe she could ever get an abortion unless her life was in danger, but she also believes the decision should be hers.
And that’s why she doesn’t want state lawmakers to dictate the fate of her embryos.
“They are part of me,” Ms. Baker said. “No one but me and my husband should have the right to decide what happens to them.”