In interviews with CNN, fertility doctors and scholars studying the legal environment around it say there is great uncertainty – both about how abortion laws already in the books will be interpreted and and on how lawmakers and local prosecutors can seek to push through the shell, free from precedents that have effectively protected the fertility process from government interference. The fears are that this lack of clarity will affect the treatment that doctors are willing to offer to patients with in vitro fertilization and the decisions that people will have to make on how to continue to develop their families.
There are several stages in the fertility process that – without the current Supreme Court abortion rights protections that have been in place for 49 years – could be vulnerable to government interference, according to Siema Mohapatra, a law professor at SMU Dedman. Faculty of Law, which specializes in assisted reproduction.
“It really has these practical effects when, due to Roe’s lack of protection against Wade and Planned Parenthood against Casey, you may not actually be able to have this desired child, you paid all that money and go through this physical process, for to have, ”she said.
About 2 in every 100 children born in the United States are conceived through IVF, according to data released by the US Centers for Disease Control and Prevention.
“We’re hanging in the wind right now,” a reproductive endocrinologist in the Midwest told CNN about the looming uncertainty. The doctor speaks on condition of anonymity due to the sensitive nature of their practice and the uncertain future of procedures such as IVF in their country.
The focus of concern is how some states with abortion laws, such as Tennessee, Arkansas and Kentucky, are already identifying embryos as unborn children at the time of fertilization – a position that could provide a starting point for lawmakers to intervene in the IVF process.
“The United States has already taken the liberty of having these broad definitions. They just couldn’t force them the way they wanted to because Rowe and Casey got in the way, “said Rutgers Dean of Law and Professor Kimberly Mutcherson, referring to 1973 and the 1992 Supreme Court abortion precedents. But if Rowe and Casey are overturned, Mutcherson said, that’s what the Supreme Court will say, “Do what you want to do, states!”
“And it’s a pretty wild place to live,” she said.
In Louisiana, lawmakers are already moving in a bold direction. Last week, lawmakers proposed a bill that would criminalize abortion in the country and grant constitutional rights to “all unborn children from the time of fertilization.” It should be noted that this bill will remove the language in the current Louisiana law, which deals with the “implantation” of a fertilized egg before it is considered a person.
“A bill like the one proposed in Louisiana would ban IVF in that state, and that’s something we’re very worried about,” Dr. Natalie Crawford of FORA Fertility in Austin, Texas, told CNN. “We don’t think people understand the implications of some of these proposed bills.”
“This is a process of conception, not a moment”
When an individual or couple undergoes the IVF process, work begins in a laboratory where sperm fertilizes an egg after weeks of preparation. The goal is ultimately to transfer a healthy embryo into a person’s uterus. But first, the embryo must grow to the blastocyst stage, which usually occurs between five and seven days after fertilization.
“It’s a process of conception,” said the Midwestern doctor. “Not a moment.”
IVF clinics typically use the genetic material of two people to create multiple embryos because they do not know which ones 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. “That’s because, on average, half of all embryos are chromosomally abnormal.” These abnormalities can lead to 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 them instead of implanting them.
This creation of multiple embryos is where IVF clinics see potential legal issues on the horizon. If a country identifies an unborn child as existing at the time of fertilization, clinics may break the law by discarding chromosomally abnormal embryos or terminating a pregnancy when multiple embryos are implanted.
“The chances of a successful IVF cycle are not so high, so doctors often implant multiple embryos to increase the chances of at least one pregnancy,” said Mary Ziegler, a visiting Harvard law professor who writes in detail about abortion. . “Sometimes, in order to maximize the chances of pregnancy, some of these pregnancies are terminated. Many people in the anti-abortion movement look at it and say it’s an abortion.”
People undergoing IVF may also choose to freeze unused embryos for later use or for backup if the pregnancy ultimately fails.
“There are always extra embryos,” Mohapatra said. “You don’t know if he will take the first cycle.”
Crawford posted a long topic 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 the safe and affordable and effective care of IVF. ” we are limited in the above technology. ”
– What can I say to these patients?
At this stage, there is no clear indication of whether individual state legislatures will extend their abortion bans to apply explicitly to the IVF process. But the uncertainty about how future abortion bans can be interpreted – especially in a legal landscape where enforcement decisions can be made by individual prosecutors – forces those in the area to look carefully at what is possible.
“If I were in an IVF clinic, we would waste many hours debating, ‘What does this mean?’ What do we have to do? How do we protect our patients? ”Asked Katie Watson, a bioethicist and lawyer who is an associate professor at Feinberg School of Medicine at Northwestern University. “So the chilling effect and limitations on smart medical practice will be significant, even if it is not what the legislators intend.”
The Midwestern doctor, who regularly sees infertility patients, says the office phone is ringing off the hook of people worried about what the post-Rowe world would mean for their reproductive journeys.
“The receptionists asked me, ‘What can I say to these patients?'” The doctor said, adding that it was difficult to give a definite answer.
Part of the unknown is fueled by the discretion that individual prosecutors will have in enforcing the abortion law.
“All that is needed in any case is a fraudulent prosecutor who wants to be aggressive in his interpretation of the law, and this can certainly create problems for those seeking IVF,” said Kim Clark, senior lawyer for reproductive rights and health. and justice in the progressive advocacy organization Legal Voice.
Another complicating factor is the role that civil law enforcement will play – such as the six-week Texas ban, which allows individuals to sue anyone who facilitates the ban procedure – in the post-Roe world.
“When you have these citizens’ law enforcement laws, suddenly every random neighbor who says the blastocyst is [person] can sue this clinic and this is where the freezing is phenomenal, “Watson said.
One thing is clear, however. If Roe is erased, a set of measures aimed at IVF could “move forward much more easily,” according to Judith Daar, dean of the Northern Kentucky College of Law at Salmon P. Chase College, who previously chaired the ethics committee. Commission of the American Society for Reproductive Medicine.
“The abolition of Roe could motivate and certainly pave the way for new legislation that could specifically target IVF,” she said, while suggesting that states could eventually ban genetic testing, which is currently underway. regularly on embryos to detect abnormalities before they are implanted.
Mutcherson said fertility patients may seek to take proactive action, such as moving their embryos from countries that are expected to be hostile to abortion.
“The real question now is, are there things people need to do to protect themselves before the laws change?” Mutcherson said.
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