- The Supreme Court overturned Roe v. Wade, which provided a right for people to terminate a pregnancy, instead giving legal authority to the states.
- As states are determining how they want to address abortion, experts are concerned the language in these new laws could have unintended consequences for IVF.
- Experts are recommending patients with frozen embryos or those going through IVF not only be aware of the changing legal landscape in their state but also contact their local state representatives to share their stories.
On June 24, 2022, the Supreme Court overturned the 1973 Roe v. Wade case that provided a constitutional right for people to terminate a pregnancy. As a result of the decision, individual states now have the legal authority over abortion, which means they can restrict the procedure or ban it altogether.
Naturally, this decision has raised questions about access to abortion, but it also has created concerns about reproductive healthcare. Depending on how the new laws define when life begins—either at fertilization or implantation—it could have an impact on fertility treatments like in vitro fertilization (IVF).
“I am absolutely concerned about the implications of government overreach into this space,” says Stephanie Levich, a fertility expert and founder of Family Match Consulting, who also built her family with IVF. “Hopeful parents-to-be should be able to choose how to build their families without interference. While the legal, hypothetical situations that could play out are yet to be seen, the possibilities are quite terrifying.”
Ultimately, the new laws developed in the wake of this court decision could have significant consequences for the one in eight couples dealing with infertility in the U.S. that rely on IVF and other assisted reproductive technologies (ART) to build their families.
A Closer Look at the IVF Process
In simple terms, IVF is a procedure that involves fertilizing a human egg outside of the uterus, with the goal of transferring a healthy embryo into a person’s uterus. Approximately two out of every 100 children born in the United States are conceived through IVF, and more than 300,000 ART cycles were performed in the U.S. in 2020 alone.
Once fertilized, some eggs will develop into embryos that can then be transferred to a person’s uterus. If successfully implanted, it could result in a pregnancy. However, it is important to note that there is no way of knowing which embryos will grow to the right stage—just like with traditional pregnancies. So, IVF clinics typically create multiple embryos to improve the chances of helping the couple or individual achieve a healthy pregnancy.
The majority of people undergoing IVF opt to freeze unused embryos for use in building their families in the future. Freezing embryos also can help them maximize the cost-effectiveness of the IVF process. More importantly, saving or freezing the embryos allows for the transfer of only one embryo at a time during the transfer portion of a cycle to avoid a multiple pregnancy. According to the American Society of Reproductive Medicine (ASRM), having multiples through IVF can increase the risk for adverse health outcomes for both babies and pregnant people. Plus, the remaining frozen embryos can be used for later cycles such as when a failed transfer cycle occurs or when a couple or individual wishes to grow their family again in the future.
How IVF Could Be At Risk
Currently, IVF is accessible to those wishing to build a family in all 50 states as well as Washington, D.C., according to Resolve, the National Infertility Association. Meanwhile, a report from the ASRM indicates the trigger laws in 13 states do not pose a threat to infertility providers and their patients at the moment.
Legal and fertility experts are still concerned this could change and IVF could be impacted either inadvertently or purposefully depending on legislator goals—especially as additional states develop anti-abortion legislation. In fact, according to the Guttmacher Institute, more than half of the states in the U.S. (as many as 26 states) will likely ban abortions.
Even though the primary reason for these bans is to restrict abortions, fertility and legal experts worry that without Roe v. Wade, state lawmakers could introduce legislation that could potentially threaten access to family-building treatments such as IVF.
Susan L. Crockin, JD, is an attorney with Crockin Law & Policy Group and senior scholar and adjunct professor, at the O’Neill Inst. for National and Global Health Law, Georgetown Law Center. In a paper she wrote for ASRM, she indicated if a state’s law does not specifically exempt IVF or embryos, the potential impact on providers and patients could be multi-faceted.
Not only could storage and disposition choices be questioned or limited, but discarding embryos could be disallowed, Crockin writes. Even “compassionate transfers” which involve transferring embryos to the uterus during a non-fertile time without an expectation or goal of achieving a pregnancy, could be considered a violation of the law.
“[Naturally,] IVF patients are concerned,” Crockin adds. “And many are moving or considering moving their embryos to avoid any uncertainties or future restrictions.”
Personhood Rights and the Impact on Embryos
According to Resolve, for the last decade states around the country have attempted to pass laws declaring that human life, or “personhood,” begins as soon as a sperm fertilizes an egg. These personhood bills could inadvertently limit common IVF practices and procedures, such as testing embryos for genetic abnormalities before transfer. They also could make IVF even more difficult and expensive. In some cases, they could even make IVF illegal.
“The biggest issue for most patients is how state legislators are going to define when a life begins or a person begins,” explains Brooke Rossi, MD, an OB/GYN, reproductive endocrinologist, and expert in infertility with Ohio Reproductive Medicine as well as an assistant professor in obstetrics and gynecology at The Ohio State University. “These are sometimes considered personhood laws and have [huge] implications for how we do our job. If a state decides a person begins at fertilization, that may have implications on how we practice IVF.”
Dr. Rossi adds it is important to note that biologically not every fertilized egg becomes a baby—even for people who are trying to conceive naturally. Consequently, it may be overreaching to indicate a fertilized egg is a person long before it is implanted.
“It will be very difficult to practice IVF if every egg fertilized is considered a person,” she says. “Most IVF labs decide how to use embryos based on quality, if it is growing, and the implantation potential. That all changes if we no longer have the ability to assess those things.”
In fact, if state legislators specify that life begins at fertilization or conception rather than implantation, each embryo created in the lab could potentially have the same rights as an embryo successfully implanted through a traditional pregnancy. Even though such personhood bills haven’t been passed, they could be in the future.
“In states where a personhood bill might pass, [providers] might not be able to use IVF in the way it was intended,” explains Kara N. Goldman, MD, FACOG, an OB/GYN, reproductive endocrinologist, and medical director of Fertility Preservation at Northwestern Medicine as well as an associate professor of obstetrics and gynecology at Northwestern University. “Someone may have to be limited on how many eggs can be fertilized and then transferred back to the uterus. This could mean fewer embryos in older patients. And it could be problematic for younger patients and yield a triplet pregnancy.”
In an IVF cycle, the hope is for multiple eggs to be retrieved in order to increase the chance of success. It also allows future parents the opportunity to have multiple children from a single IVF cycle, Levich explains.
“If embryos are granted full constitutional rights as human beings, fertility doctors would need to change their medication protocol to retrieve only a small number of eggs in a cycle,” she says. “This, in turn, would significantly decrease success rates and significantly increase the cost of IVF by requiring patients to pay for multiple cycles, medication, etc.”
Notably, there are currently a small number of abortion bans that define life as beginning at fertilization, but, they do not specifically target the IVF process. There also are a small number of states that are considering legislation that will establish personhood.
“Officials in states like Alabama, Arkansas, and Oklahoma have clarified that their bans on abortion will not affect IVF,” says Levich. “However, when their laws define that life begins at conception and a frozen IVF embryo has been conceived, many are rightly worried that politicians have not fully thought through the implications of the wording of their laws that didn’t intend to target IVF but very well could.”
Impact on the IVF Process
New laws also could impact the process of IVF and could ultimately require unsafe practices. Generally, anything that comes between patient and physician will lead to less optimal and less safe outcomes, Dr. Goldman says.
“Speculatively, [future laws could require that] IVF be practiced with limited fertilization; no embryos would be frozen; and they would transfer back to uterus all embryos that were created,” she says. “I hope that those restrictions are never required because it is an ineffective and unsafe way to practice IVF.”
Additionally, putting restrictions on IVF or using confining language also could impact people with special circumstances like cancer. Overly restrictive laws or legislation could impede an individual’s or a couple’s ability to achieve their desired family size—especially if there are restrictions on freezing embryos, Dr. Goldman explains.
“We also spend a lot of time taking care of patients with a cancer diagnosis and attempt to preserve their fertility prior to their cancer treatment,” she says. “The only standard of care is to freeze eggs or freeze embryos. Having the ability to freeze and use embryos at a later is critically important for cancer patients.”
Other Potential Consequences
Another potential complication is the impact laws could have on how embryos are stored, maintained, or even discarded. Potentially, clinics or patients might have to pay for long-term embryo storage, especially if discarding embryos is considered abortion.
“I’m not aware of any [state laws] that define abortion in that way,” says Crockin. “But if life is stated to begin at fertilization in either an abortion statute or a so-called personhood law, there could be significant limits to the use and disposition of embryos.”
Dr. Rossi is concerned new laws also could limit access to IVF, particularly for people who do not have the resources to move or travel to another state. Not only is IVF a costly process, but some people can only afford one attempt.
“If there are states where they have made such significant laws, fertility practices or embryologists won’t be able to work in that type of environment,” Dr. Rossi says. “Legally, it would be just too hard, so practices may close.”
In some states, there are not a lot of practices to begin with because of strict laws and limitations, Dr. Rossi says. In those places, families only have access to what was available in the 1990s, she says.
“It is discouraging in states where access is limited,” Dr. Rossi adds. “They are in situations where [providers] have to use less effective or less safe treatments or patients have to travel to have the same access as someone in another state could have. This is very scary and disheartening for patients because all they want to do is have a family, but they are getting caught in this and my heart goes out to them.”
Plus, there is the fact that infertility and IVF are already stressful. Additional limitations or restrictions on an already expensive and stressful process could increase the physical and emotional toll of egg extraction, implantation, and other parts of the IVF process couples and individuals endure.
“I don’t want to add anxiety and fear to an already stress-ridden process,” Dr. Goldman adds. “I want to be clear that we are not trying to fear monger. People should have the option to pursue a pregnancy when they are ready as well as the option to not pursue a pregnancy. Likewise, IVF and reproductive technologies are a reproductive choice. Any decision should be between a patient and physician.”
Will IVF Become a Target of Anti-Abortion Groups?
Some research indicates many people do not view abortion and IVF the same way. In fact, less than 20% of the people who view abortion as morally wrong also describe IVF in the same way.
Likewise, a 2020 Collaborative Multi-Racial Post-Election Survey echoes these findings, indicating that a diverse cross-section of the U.S. population has high support for IVF. That said, with so much change on the horizon with regard to reproductive rights and health, it is hard to say what the future holds.
Although representatives from anti-abortion organizations such as National Right to Life (NRTL) and Americans United for Life (AUL) did not respond to requests for comment, in an open letter to legislators, NRTL urges lawmakers to ensure that “the laws that are advanced to protect unborn children do not harm their mothers.” Additionally, their letter further states that NRTL will continue to oppose legislative and policy initiatives that “criminalize women who seek abortions.”
Ultimately, the impact on IVF will come down to the state a person lives in and how the laws apply to eggs fertilized during IVF. For this reason, experts in the field encourage patients who are using—or have used IVF—to contact their state representatives and share their stories.
“IVF has been an important tool for family creation for over 40 years and it will continue to help hundreds of thousands of families every year whether or not new laws attack certain loopholes in certain states,” Levich says. “I’m personally grateful it gave me and my husband our children and professionally thankful to have witnessed thousands of my clients find their own success with IVF as well. I hope everyone who is longing for children in the same way that my clients and I were are able to access that opportunity freely.”
What This Means For You
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