The Supreme Court leaked the draft opinion in the case Dobbs v. Jackson Women’s HealthThis has sparked a firestorm of questions about future reproductive rights. Although much of the conversation has been about the immediate fate for abortion access, it is important to remember that there are many other issues. Roebe overturned, and abortion rights transferred to the states. Many of these states are the 1 in 8 couples dealing with infertilityThey are also asking whether IVF (in vitro fertilization) and other assisted reproductive technology (ART) will still be legal and readily available.
Both IVF law, which is gaining popularity, and abortion rights are examples of reproductive rights. Dena SharpGerard Sharp partner and the first attorney to take an IVF case to trial, just last year, said. The 19th. “There should be little dispute that whether someone makes a decision to extract material from their own body for preservation or immediate creation, that indicates the right to reproduce.”
It’s also why those in the infertility community are worried about the future of this form of family building.
What are IVF and Art?
The Centers for Disease Control and Prevention define assisted reproductive technologies as any fertility treatment that involves the handling of eggs or embryos. ART is a procedure that involves aspirating eggs from ovaries, combining those eggs and sperm in a laboratory to create embryos, then transferring the embryos to the uterus or to a gestational parent.
ART does NOT include fertility treatments that only deal with sperm (such as intrauterine injections or IUI), or procedures that use medications to stimulate egg production but not the removal or collection of those eggs.
All IVF cycles are ART cycles; ART describes the broader scope of what happens in these cycles outside of the creation of the embryo for intended transfer. IVF as a procedure involves fertilizing a human egg outside of the uterus. Over 300,000 ART cycles were performed in the United States in 2020.
IVF is the most common term used by patients who undergo ART to describe these procedures. However, legal and reproductive endocrinology specialists use the term ART. This term is also used in CDC data collection.
A patient receives a series medications to stimulate multiple follicles at once in an IVF cycle. Once enough follicles have been developed, eggs can then be extracted using ultrasound and a thin needle that is inserted through the vegina.
Once eggs have been collected, they are fertilized with sperm. As with intercourse insemination, not all eggs are fertilized and not all fertilized eggs become eggs. The embryologist will then monitor the fertilized eggs for five to seven days. Each day, some fertilized egg may stop developing. Those that make it to somewhere between day five and day seven become what’s known as blastocysts, or embryos developed to a point that makes them best primed for transfer into the uterus or for cryopreservation.
Why are some embryos frozen
Blastocysts may also be cryopreserved (frozen) for many reasons. Many couples will have their embryos tested for genetically inherited disorders or screen them to ensure they contain complete sets. The embryos can be frozen to preserve the integrity of the embryo while the testing and evaluation are done. Even if these procedures are not necessary, most IVF patients will choose to freeze unutilized embryos to reduce risk and maximize cost efficiency.
Freezing embryos allows for the transfer of only one embryo at a time during the embryo transfer portion of a cycle — the current medical recommendation of ASRM — as multiples can increase risk for adverse health outcomes for babies and pregnant people both. If a failed transfer occurs or if a couple wishes to have another child, the remaining embryos can still be used.
Why would IVF and/or ART be at risk? RoeIs it overturned?
Sean Tipton, chief advocacy, development, and policy officer for The American Society of Reproductive Medicine(ASRM), told The 19thThis should Roe be reversed, “nothing will change for infertility clinics for the most part the morning after.” The bigger issue, he said, was the long-term fallout. “What is happening is that for 50 years, there has been a constitutional right to privacy and now that right is going away. States can pass laws banning or restricting reproductive medical procedures.” That covers abortion, but could also include IVF, as it is a process inherently focused on the creation of fertilized eggs — and what happens next with them.
While the DobbsDecision is final RoeWhile it is the constitutional right of abortion access, it could also be by default end ART at some states. The question that will go to the states concerns the legal status and legal status of a fertilized eggs. This question applies to both abortion and infertility care.
“The language of some of those [state] bills includes phrases and attempts to establish the legal standing of a ‘developing human,’” Tipton said. “They will say things like, ‘any stage of human development,’ ‘from the moment of human conception’ as the time that legal status is conferred onto a biological entity.”
Because ART is a relatively new procedure, laws are still being retrofitted on it as specific cases arise. This has created a patchwork law system in which some states consider eggs and embryos property, while others seek to give the same rights to those same items as a living citizen.
“Even before these seismic changes for reproductive rights, it was a pretty scary landscape in a lot of ways for people in the ART and IVF space who had a legal issue they wanted to see addressed,” Sharp said.
With laws that vary from one state to the next, the reversal Roe would make differences only more stark, regardless of lawmakers’ intentions. “I think there will be direct implications for the full spectrum of reproductive rights if these rights are sent back to the states to decide. I think there is no doubt that people need to be concerned.”
Sharp stated that she would recommend to anyone considering ART to evaluate the political environment in their state. “I don’t think anyone has all the answers in terms of the future of IVF and how available it will be, but there is a huge change happening and it is happening faster and faster.”
She also said that IVF’s future is now more urgent because of the speed with which laws are being passed through state legislatures and the speed at the courts is where litigation is taking place. “In the old days, one of the comforts of the rule of law is that it moved at a glacial place. With the shadow docket of the Supreme Court and states laws like what we’re seeing in Oklahoma and Mississippi being jammed through, change can happen a whole lot faster.”
What will happen to frozen embryos?
Jody Madeira, the co-director for the Center for Law, Society & Culture at the University of Indiana’s law school and an expert on IVF and law, told The 19thThis is a result of the large number of trigger lawsAlready in force, the instant criminalization or abortion that could take effect in certain states would mean many of these states immediately consider life to begin at fertilization.
“So the question now is what happens to embryos created in [ART] procedures waiting to be transferred but are still unfrozen — if you freeze them now, is that manslaughter? If you destroy them now, is that manslaughter?”
Madeira explained that individuals have a variety of rights, including autonomy and privacy, to control what happens to their embryos, regardless of whether they are frozen or fresh. These same protections could also be stopped by the trigger laws intended to immediately ban abortion.
“They want to say legally and politically that a fertilized egg that has been in a lab for two days is the same as a 2-year-old baby,” Tipton said. “You can say that those things are humanly equivalent, but they’re not biologically equivalent. You can’t put a 2-year-old child in a freezer, because that would kill it. But an egg fertilized 48 hours ago can go into a freezer and come out just fine.”
What are some of the other legal risks ahead?
Tipton stated that he is concerned about future implications of state laws that emerge from a Roe overturn because “no fertility clinic staff wants to be the test case.” New legal definitions of “personhood,” or the time at which a living being gets legal status, could restrict patients’ ability to decide what happens with eggs, sperm, and embryos collected and created during an ART cycle.That would include choices over the discarding of their own eggs, sperm, or embryos that were ultimately not used in a frozen embryo transfer cycle of IVF. This cycle allows multiple eggs and embryos to be fertilized simultaneously in a laboratory and then frozen. It is currently the medical recommendation for IVF cycles.
Madeira said she’s also worried about the legality of what’s known as selective reductionThis is an option available to IVF patients who are pregnant by multiples. This procedure is sometimes performed when three or four fetuses emerge from a single cycle — either because more than one embryo was transferred or because an embryo splits, resulting in two fetuses. Some of those are terminated to reduce the risk for babies and birthing parents.
It is not clear what legislative actions would be taken to deal with existing frozen embryos, or if future frozen embryos will be banned.
“Everything we are seeing is going to be an attempt to establish the legal rights of the fertilized egg,” Tipton said, “whether or not that [fertilized] egg has established a pregnancy.”
This is why practices like pre-implantation genetic diagnosis(PGD) is the process of taking a biopsy of an embryo before it is frozen to test for inherited disease or detect the presence of cancer-causing genes such as BRCA. pre-implanation genetic screeningIn some states, the practice of (PGS) could be illegal. This is when an embryo is checked to make sure it has all chronomosal sets prior to being transferred.
That’s why Tipton said that he anticipates that what is to come is not that IVF becomes illegal outright, but that “the best way to do IVF” becomes banned in some states, forcing patients to incur massive costs as single eggs are retrieved and fertilized each cycle, with no guarantee that that egg ever fertilizes successfully, let alone implants and becomes a pregnancy.
Like the future access to abortion, many of these questions will ultimately boil down to where a person resides and how laws are applied for eggs fertilized during IVF. Oklahoma now defines life as starting at conception. The Illinois state legislature has already established that embryos do not have the same legal protections as born persons. Alabama, which stands to ban abortion using trigger laws quickly, has a law that exempts eggs from IVF in a lab.
“We’re on a legal collision course,” Madeira said. “Are some embryos lesser than others under the law then? I think a lot of the problems we’re about to see emerge come from conflating two different questions. Life begins with a personal, philosophical, and religious question. However, the legal question of when personhood begins is one. There are a lot of implications to combining those two things.”
What are the chances that IVF laws will change?
Some states might seek to protect ART, allowing exemptions from personhood to embryos created in a controlled environment. Alabama is one example. Others may try to codify access to ART by categorizing embryos, eggs and other human material as property. Property rights are not applied fundamental rights like abortion or marriage equality,” Sharp said. “Those two things are not in the Constitution — but the Constitution is all about property rights.”
Madeira said she anticipates that many legal challenges will arise out of the impacts that abortion bans and personhood laws have on Americans’ ability to grow their families through ART. “Basically, we will be litigating the right to decide if embryos are to be seen not as property but as entities that have the right to decide things. We are going to see laws that test the bounds of people’s privacy and if we are looking for a federalist interpretation as to the legality of IVF — how do we know what is deeply rooted in this nation’s traditions when it comes to that? They didn’t know about freezing embryos when this country was founded.”
It’s why Tipton said that when he talks about the question of whether legal rights should be assigned to embryos with personhood advocates, he always asks the same question of them every time.
“If there is a fire in a fertility clinic and you have a frozen embryo on one side of you and a six-month-old baby on the other and you can only save one, which do you take?” Tipton asked. “I don’t think for most people that’s a very hard decision.”
