Infertility patients. doctors fear abortion bans may restrict IVF
NEW YORK >> Anna Nibley Baker, a mother of four in Salt Lake City, is reasonably certain that 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 tenderly of the couple's three remaining embryos, frozen and stored at a university clinic.
Now, after the Supreme Court's abortion ruling overturning Roe v. Wade, Baker, 47, like countless infertility patients and their doctors nationwide, has become alarmed that the fate of those embryos may no longer be hers to decide. If states ban abortions starting from conception — and do not distinguish between whether fertilization happens in the womb or in the lab — the implications for routine procedures in infertility treatment could be extraordinary.
In a cycle of IVF, a field of medicine that is more than 40 years old and used by hundreds of thousands of heterosexual and samesex couples, single people and surrogate carriers in the United States, the hope is to create as many healthy embryos for each patient as possible. Doctors generally implant one or two of those embryos in the uterus and freeze any that remain for the patient's future use.
The moves by states to ban abortion are raising numerous legal questions about these embryos: Will doctors still be allowed to conduct genetic testing on embryos for chromosomal anomalies or diseases like Tay-Sachs, Huntington's and sickle cell, to help determine which to implant?
Will patients like Baker be precluded from discarding unneeded embryos and instead urged to donate them for adoption or compelled to store them in perpetuity?
If embryos do not survive being thawed for implantation, could clinics face criminal penalties?
In short, many fear that regulations on unwanted pregnancies could, unintentionally or not, also control people who long for a pregnancy.
Since the ruling, fertility clinics have been pounded with frantic calls from patients asking if they should or even legally could transfer frozen embryos to states with guaranteed abortion rights. Cryobanks and doctors have been churning through cautionary scenarios as well: A Texas infertility doctor asked if he should retain a criminal defense lawyer.
So far, the texts of the laws taking effect do not explicitly target embryos created in a lab. A new policy paper from the American Society for Reproductive Medicine, which represents an array of fertility treatment providers, analyzed 13 so-called trigger laws and concluded that they do not pose an immediate threat to infertility patients and their health care providers. And in interviews, leading antiabortion groups said that embryos created through assisted reproductive technology were not currently a priority.
But legal experts warn that as some states draft legislation, the status of these embryos, as well as patients and providers, could become vulnerable, especially if an impassioned prosecutor decides to test the new terrain.
Barbara Collura, president of Resolve, which represents the interests of infertility patients, said the organization had seen numerous legislative efforts to assert state control over embryos. Those failed “because we fought back and we also had the backstop of Roe v. Wade,” she said.
Referring to the case in the ruling that overturned Roe, she continued, “So we feel that Dobbs is something of a green light for those legislative zealots 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 Baker lives, for example, frames abortion in the context of a “human pregnancy after implantation of a fertilized ovum,” which would exclude state jurisdiction over stored embryos.
(That trigger law is on a temporary hold.)