On June 24, the U.S. Supreme Court overturned Roe v. Wade, the landmark decision that had previously guaranteed abortion rights across the country. Now, Americans no longer have a constitutional right to abortion, and state-by-state laws will determine their access to it. Already, 13 states have so-called “trigger laws,” which essentially waited for the long-standing precedent to be struck down in order to automatically or quickly ban abortion, with more expected to follow suit in the near future.
Though the ruling wasn’t a surprise—especially after a draft opinion was leaked in May—its effects on access to essential healthcare are devastating. At Bird&Be, we firmly believe that reproductive health decisions belong between a person with a uterus and their doctor, period. And for the fertility community, we worry about the potential far-reaching consequences for those seeking in-vitro fertilization (IVF).
Here’s what we know so far about how the Roe v. Wade reversal may impact IVF.
What’s the connection between abortion laws and IVF?
“Everyone is like, ‘You’re a fertility doctor; you make families! You’re doing the opposite of abortion,’” says New Jersey–based Dr. Serena Chen, who spoke with Bird&Be following the overturn of Roe v. Wade. “But in order to do that, I have to work with human biology, and human biology is really inefficient—a lot of eggs are no good, a lot of sperm are no good. Humans make a lot of abnormal embryos, and most of those embryos won’t implant, or they’ll implant and miscarry.”
In IVF, it’s common practice to retrieve and fertilize as many eggs as possible to maximize success. Typically, only one or two at a time are transferred to the uterus in hopes of implantation (transferring more could lead to a high-risk pregnancy with multiple babies). Other fertilized eggs (embryos) are discarded, either because they’re no longer needed or because preimplantation genetic testing has determined they are genetically “abnormal.”
“There’s a crazy thing that happens when you intersect medicine with law, and sometimes really bad things happen,” says Chen. In the case of IVF and abortion laws, one such “bad” outcome could be that if a state defines life as beginning at fertilization, embryos used in IVF could be viewed as human beings with rights in the eyes of the law.
The ramifications of that could be enormous: If an embryo is viewed as a “person,” is it illegal to discard them? Will there be limits on how many eggs can be fertilized, which would reduce the success and increase the cost of IVF? Will all embryos need to be transferred? Will embryo testing become illegal? What about freezing?
Transferring an embryo that a doctor knows isn’t viable or has genetic concerns is actually a risk to the patient, Chen points out. Pregnancy can come with risks, she says, noting that even under the best circumstances the odds of a transfer resulting in a live birth is still around 65 to 70 percent. Why would a responsible practitioner willingly subject their patient to the trauma (and medical risk) of a potential pregnancy that they’re well aware will fail? Or increase their risk of multiples by implanting more than one embryo?
And that’s not even getting to the pregnancy-related complications, like an ectopic pregnancy or partial miscarriage, where abortion can be medically necessary to save the life of the pregnant person, which may also impact those who conceive via IVF.
Chen is concerned that access to fertility care could become more and more difficult, especially in states with bans or even just stricter parameters for a legal abortion where fertility specialists may be hesitant about setting up a practice.
What is a “personhood bill,” and could it make IVF illegal?
According to fertility organization Resolve, hundreds of personhood bills have been proposed (and until now, defeated) in states across the country, including Oregon, Florida, New Hampshire and Arizona. “States around the country (as well as the federal government) have attempted to pass laws declaring that human life, or ‘personhood’ begins as soon as sperm fertilizes an egg,”the organization writes. “These so-called personhood bills could make common fertility treatments like IVF illegal.”
Chen agrees: “This could criminalize what a lot of doctors do,” she says, pointing out that these personhood bills are all quite different. A proposed Nebraska bill, for example, makes it so personhood begins at fertilization (even in a lab, making some parts of IVF practices potentially illegal), whereas an Oklahoma personhood bill defines it as fertilization in the uterus. Other states with personhood bills currently proposed include Pennsylvania, South Carolina and Missouri.
Does this mean IVF is now illegal in some states?
At the time of publication, IVF remains legal in all U.S. states, though Chen notes that she’s aware of people moving their frozen embryos to different states out of pre-emptive concern that the one they’re currently stored in may make it illegal. (Talk to your clinic for their advice on this.)
“There’s a small bright spot in that most people who are anti-abortion are pro-IVF,” says Chen. “So in the IVF community, we’ll be working to protect it across the country, and we think we can, because we feel that regardless of how you feel about abortion, everyone supports building families.” It will, however, require legislative legwork to ensure that specific protections for IVF are put into law, especially in states with strict abortion laws. “It’s going to be hard and complicated,” says Chen, adding that legislators may not have a full understanding of how reproductive medicine works. It’s possible that they could even unintentionally outlaw IVF, for example, or at least have a chilling effect.
In West Virginia, for example, it became illegal in March to abort a fetus with a genetic anomaly, and thus far, 11 other states have introduced similar bills to their legislatures. This could make doctors and patients more hesitant to transfer embryos deemed abnormal or mosaic (where the genetic testing shows a combination of normal and abnormal cells). There’s also the example of Louisiana, currently the only state that makes it illegal to destroy unused embryos, which at the very least requires a person or couple to indefinitely store embryos they don’t plan to use. In the short-term, this means assuming the cost of embryo freezing and storage for years, and in the long-term, raises questions about what happens to those embryos beyond the patient’s lifetime.
“We have a lot of work to do, because people just don’t always understand what we do,” says Chen, who urges people to call their legislators in every state, even ones where it seems abortion will remain accessible and legal. “In America, we never think human rights are at risk, so we usually don’t vote that way,” she adds. “It does seem like this should be a voting issue, because it seems like human rights, women’s rights and reproductive health and safety are all at risk.”