In interviews with CNN, doctors who work in the fertility field, and academics who study the legal landscape around it, say there is serious uncertainty — both about how abortion laws already on the books will be interpreted and about how lawmakers and local prosecutors might seek to push the envelope. , freed from the precedents that effectively shielded the fertility process from government interference. That lack of clarity is feared to affect the treatments doctors are willing to offer IVF patients and the decisions people will have to make about how to go about growing their families.
There are multiple stages of the fertility process that — without the Supreme Court’s current legal protections for abortion rights, which have been in place for 49 years — could be vulnerable to government interference, according to Seema Mohapatra, a law professor at SMU Dedman School of Law who specializes in assisted reproduction. reproduction.
“It really has these practical consequences where, because of the lack of protection from Roe v. Wade and Planned Parenthood v. Casey, you actually can’t have this wanted child that you’ve paid all this money and go through this physical process to have,” she said.
“We’re hanging in the wind right now,” one Midwestern reproductive endocrinologist told CNN of the looming uncertainty. The doctor spoke on condition of anonymity because of the sensitive nature of their practice and the uncertain future of procedures like IVF in their state.
“States have already taken the liberty of having these expanded definitions. They just haven’t really been able to enforce it the way they wanted because Roe and Casey stood in the way,” said Rutgers Law School Dean and Professor Kimberly Mutcherson, citing after the 1973 and 1992 Supreme Court abortion precedents. But if Roe and Casey were overturned, Mutcherson said, it would effectively be the Supreme Court saying, “Do what you want to do, states!”
“And it’s a pretty wild place to be in,” she said.
“A bill like the one being proposed in Louisiana would ban IVF in that state, and that’s something we’re extremely concerned about,” said Dr. Natalie Crawford of FORA Fertility in Austin, Texas, told CNN. “We don’t think people understand the repercussions of some of these proposed bills.”
‘It is a process of conception, not a moment’
When an individual or couple undergoes the IVF process, the work begins in a laboratory, where a sperm fertilizes an egg after weeks of preparation. The goal is to eventually transfer a healthy embryo into a person’s uterus. But first, the embryo must grow to the blastocyst stage, which typically occurs between five and seven days after fertilization.
“It is a process of conception,” said the Midwestern doctor. “Not a moment.”
IVF clinics usually use two people’s genetic material to create multiple embryos because they don’t know which one will grow to the right stage or which will lead to a successful pregnancy.
“The goal is generally to make as many embryos as possible,” the doctor explained. “This is because, on average, half of all embryos are chromosomally abnormal.” These abnormalities can result in conditions such as Down syndrome and trisomy 18 or can prevent the embryo from becoming a healthy pregnancy. Clinics and/or clients usually choose to discard it rather than implant it.
The creation of multiple embryos is where IVF clinics see potential legal problems on the horizon. If a state defines an unborn child as existing at the moment of conception, clinics can violate the law by discarding chromosomally abnormal embryos or by terminating a pregnancy where multiple embryos have been implanted.
“The chances of a successful IVF cycle are not that great, so doctors will often implant multiple embryos to maximize the chance that at least one pregnancy will come to fruition,” says Mary Ziegler, a visiting Harvard law professor who writes extensively on abortion issues. “Sometimes, to maximize the chances of a pregnancy coming to term, some of those pregnancies are terminated. A lot of people in the anti-abortion movement look at that and say that’s abortion.”
Individuals undergoing IVF may also choose to freeze unused embryos for later use, or for backup if a pregnancy is ultimately unsuccessful.
“There are always extra embryos,” Mohapatra said. “You don’t know if it’s going to take the first cycle.”
Crawford posted a lengthy thread on Twitter highlighting how restrictive abortion laws in several states can be detrimental to IVF, explaining that the process of “fertilizing eggs, freezing embryos, testing embryos, and transferring/disposing of embryos .. . is essential for safe, accessible and effective IVF care.” Crawford continued, “The fear is that when Roe is overturned states will then individually decide their position on this matter … if life legally begins at conception – then we are limited in the above technology.”
“What do I tell these patients?”
There is no clear indication at this point whether individual state legislatures will expand their abortion bans to expressly apply to the IVF process. But uncertainty in how future abortion bans might be interpreted — especially in a legal landscape where enforcement decisions can be made by individual prosecutors — is forcing those in the field to examine what’s possible.
“If I was at an IVF clinic, we would waste many hours debating: ‘What does this mean? What should we do? How do we protect our patients?’ asks Katie Watson, a bioethicist and attorney who is an associate professor at Northwestern University’s Feinberg School of Medicine. “So the chilling effect and the limitations on the smart practice of medicine will be significant, even if it’s not what lawmakers intended.”
The Midwestern doctor who regularly sees patients struggling with infertility says the office phone has struck a chord with people worried about what a post-Roe world would mean for their reproductive journeys.
“Receptionist asked me, ‘What should I say to these patients?’ ” said the doctor, adding that it was difficult to give a definitive answer.
“In any case, all it takes is a rogue prosecutor willing to be aggressive in his or her interpretation of the law, and that can certainly create problems for those seeking IVF,” Kim Clark, senior attorney for Reproductive Rights, Health and Justice at the progressive advocacy organization Legal Voice.
Another complicating factor is what role civil enforcement measures—such as the Texas six-week ban, which allows individual citizens to file lawsuits against anyone who facilitates a procedure prohibited by the ban—in the post-Roe world will play
“When you have these citizen enforcement laws, suddenly any random neighbor who says a blastocyst is a [person] can sue that clinic, and that’s where the cold is phenomenal,” Watson said.
However, one thing is clear. If Roe is overturned, a variety of measures aimed at IVF “could move forward much more easily,” according to Judith Daar, the dean at Northern Kentucky University-Salmon P. Chase College of Law, who previously served on the ethics committee for the American Society. for Reproductive Medicine.
“The overturning of Roe could motivate and certainly pave the way for new legislation that could specifically target IVF,” she said, suggesting that, for example, states would eventually end the genetic testing now routinely performed on embryos to detect abnormalities track they are implanted.
Mutcherson said fertility patients can try to take proactive steps, such as moving their embryos from states expected to be hostile to abortion.
“The question now really is, are there things that people should be doing to protect themselves before laws start to change?” Mutcherson said.