Anna Nibley Baker, a Salt Lake City mother of four, is pretty sure she and her husband are done building their family. Yet for eight years, since the birth of her last child, conceived through in vitro fertilization, she has thought fondly of the couple’s three remaining embryos, frozen and stored at a university clinic.
Now, in the wake of the Supreme Court’s abortion decision overturning Roe v. Wade, Ms. Baker, 47, like countless infertility patients and their doctors across the country, worries that the fate of those embryos may no longer depend on her. If states ban abortions beginning at conception—and make no distinction between whether fertilization occurs in the womb or in the laboratory—the implications for routine infertility treatments could be extreme.
In cycle IVF, an area of medicine that is more than 40 years old and used by hundreds of thousands of heterosexual and same-sex couples, singles and surrogates in the United States, the hope is to create as many healthy embryos as possible for each patient , as far as possible. Doctors usually implant one or two of these embryos into the uterus and freeze all the rest for the patient’s future use.
Will patients like Ms. Baker be banned from discarding unwanted embryos and instead be forced to donate them for adoption, or be forced to store them forever?
If the embryos do not survive being thawed for implantation, could the clinics face criminal penalties?
In short, many fear that unintended pregnancy regulations may, unwittingly or not, also control people who long for pregnancy.
Since the ruling, fertility clinics have been deluged with frantic calls from patients asking whether they should or even can legally transfer frozen embryos to states with guaranteed abortion rights. Cryobanks and doctors are also dealing with cautionary scenarios: A Texas infertility doctor asked if he should hire a criminal lawyer.
So far, the texts of the laws coming into force do not specifically target embryos created in a laboratory. A new policy paper from the American Society for Reproductive Medicine, which represents an array of infertility treatment providers, analyzes 13 so-called legal triggers and concludes that they pose no immediate threat to infertility patients and their health care providers. And in interviews, leading anti-abortion groups have said that embryos created through assisted reproductive technology are not currently a priority.
But legal experts warn that as some states draft bills, the status of those embryos, as well as patients and providers, could become vulnerable, especially if a passionate prosecutor decides to test the new terrain.
Barbara Collura, president of Resolve, which represents the interests of infertility patients, said the organization has seen numerous legislative efforts to establish state control of embryos. They failed “because we fought back and we also had the Roe v. Wade defense,” she said. “Obviously we don’t have that anymore. “
Citing the case in the decision that overturned Roe, she continued, “So we think Dobbs is sort of a green light for those legislative supporters who want to take this a step further.”
By using the word “pregnancy,” most trigger bans distinguish their target from an embryo stored in a clinic. The ban in Utah, where Ms. Baker lives, for example, places abortion in the context of “a human pregnancy after implantation of a fertilized egg,” which would exclude state jurisdiction over stored embryos. (This trigger law is temporarily on hold.)
And the abortion legislation, which the National Right to Life Committee upholds as a model for state affiliates and lawmakers, refers to “all stages of development of an unborn child in a pregnant woman’s womb from fertilization to birth.”
From Opinion: The End of Roe v. Wade
Commentary by Times Opinion writers and columnists on the Supreme Court’s decision to end the constitutional right to abortion.
- David N. Hackney, a maternal-fetal medicine specialist: The end of Roe “is a tragedy for our patients, many of whom will suffer and some of whom may die.”
- Mara Gay: “Sex is fun. For puritanical tyrants who seek to control our bodies, this is a problem.
- Elizabeth Spiers: “The idea that rich women will get away with it no matter what the law says is probably comforting to some. But that’s just not true.”
- Kathryn Stewart, writer: “The breakdown of American democracy is not an unwanted side effect of Christian nationalism. That is the point of the project.”
Representatives of four nationwide anti-abortion groups said in interviews that they firmly believe all embryos are human beings, but that regulating IVF embryos under abortion bans is not their first order of business.
“There is so much work to be done in so many other areas,” said Laura Echevarria, spokeswoman for the National Right to Life Committee, citing parental notification laws and safety net programs for pregnant women and their families. “IVF isn’t even on our radar.”
But Christy Hamrick, spokeswoman for Students for Life Action, a major national anti-abortion group, noted that IVF has recently become part of the conversation.
“Protecting life from the beginning is our ultimate goal, and in this new legal environment we are exploring issues like IVF, especially given a business model that by design ends most lives conceived in a lab,” she said.
Clinics are not required to report the number of frozen embryos they store, so confirming a reliable figure in the United States is impossible. The most-cited number, 400,000, is from a 2002 RAND Corporation study, but the updated total would be much higher.
In the past year, Republican lawmakers in at least 10 states have proposed bills that would grant legal “personhood” status to these frozen embryos, according to records kept by Resolve. No one has passed. But policy analysts at the American Society for Reproductive Medicine said these laws, which give embryos and fetuses the legal status of living human beings, “may become more common in a post-Roe world.”
Ms Hamrick, of Students for Life Action, said “conception protection” or “personhood” laws had a “bright future”.
And although trigger bans typically define abortion in relation to pregnancy, the language resonates uneasily with some in the world of infertility. Arkansas, for example, defines an unborn child as “an individual organism of the species Homo sapiens from fertilization to live birth.”
Sarah Kraner, general counsel for Fairfax Cryobank, which operates embryo storage facilities in six states, said, “We don’t know how the states are going to interpret the language, and nobody wants to be the test. I can make good arguments why the various prohibitions don’t apply to stored embryos, but I can’t guarantee that a judge will side with me if I go to court.
Sean Tipton, a spokesman for the American Society for Reproductive Medicine, predicted that patients and providers are in for a prolonged period of uncertainty as lawmakers introduce laws and prosecutors test them.
“It’s as if the Dobbs decision has removed the condom,” Mr. Tipton said. “And if you practice law without taking the proper precautions, you’re going to make some mistakes.”
Although the threat that impending abortion bans pose to infertility patients and providers is unclear, discussions are underway about preventative measures. But any suggestion could prove problematic.
Judith Daar, dean of Northern Kentucky University’s Salmon P. Chase College of Law and an expert on reproductive health law, said passing a state law that would differentiate infertility patients from those seeking an abortion risks having a discriminatory impact. ,” given that the majority of IVF patients are white, while women of color account for the majority of all abortions performed in the US.
Some medical and legal experts have proposed another type of end-stage: creating one embryo at a time by storing sperm and eggs separately and thawing them only to create separate embryos if needed. Strictly speaking, this approach would avoid some of the potential legal problems posed by stored embryos and circumvent statutory language that prohibits post-fertilization abortion.
But such a practice would be inefficient in terms of time and cost, as well as unethical, given that the woman would have to be given drugs and undergo a surgical procedure for each embryo transfer.
The third option, which has entered discussions between doctors and patients only in the last few years, is called “compassionate transfer.” A 2020 position paper from the American Society for Reproductive Medicine said the term refers to a patient’s request for embryo transfer into her body “at a time when pregnancy is highly unlikely to occur and when the pregnancy is not expected result’. For people who view the frozen embryo as human life, compassionate transfer is a kind of natural death for the embryo, not its destruction in a laboratory.
Catherine Kraschel, an expert on reproductive health law at Yale Law School, noted that clinics could be forced to store embryos that embryologists have determined are unlikely to lead to pregnancy.
“It could also mean that ‘compassionate transfer’ is recommended not to respect the patient’s moral evaluation of their embryos, but because the state has imposed its moral evaluation on them,” she said.
Ms. Baker, who is a mother through adoption as well as IVF, feels deeply attached to her three frozen embryos. She is struggling to find a way forward, especially now that the Supreme Court’s decision on abortion casts a shadow over their future.
She can’t imagine donating them to another couple, effectively letting strangers carry and raise her…
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