San Antonio Express-News (Sunday)
Supreme Court’s decision also may hinder IVF access
WASHINGTON — The end of Roe v. Wade would bar women across much of America from aborting a pregnancy. But it also may restrict millions more people trying to get pregnant.
State laws banning abortion entirely could unintentionally complicate access to in vitro fertilization, the process of creating embryos outside of the womb that results in over 55,000 babies each year, or 2 percent of annual births in the United States.
Over 2.5 million Americans in same-sex couples or struggling with fertility issues go through IVF each year, fertilizing as many eggs as possible in order to maximize their chances that one embryo results in a successful pregnancy. But the process often results in nonviable embryos, or more embryos than needed. Experts in the field now warn that state laws defining fertilization as the moment life begins could throw the procedure into legal jeopardy.
“IVF can and will absolutely be implicated in some of these states, and that’s something that lots of LGBTQ people and Americans more generally rely on to create their families,” said Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign. “It is a very significant addition, one that people are not very aware of and frankly are not going to agree with.”
Thirteen states have prepared “trigger laws” that ban abortion if the Supreme Court rules to overturn Roe — a possibility that became palpable this week when a draft decision reversing the 50-year-old precedent leaked to Politico.
Many of those laws define life as beginning at “the moment of fertilization.”
“The trigger laws themselves are not aimed at prohibiting assisted reproduction or IVF and likely will not have that immediate effect,” said Catherine Sakimura, deputy director and
family law director at the National Center for Lesbian Rights. “But some of the language of these laws broadly discuss life as beginning at conception, and this language could lead to interpretations that limit or prohibit IVF, because the process of IVF can create embryos that do not result in pregnancies or in viable pregnancies.”
States with trigger laws include Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Oklahoma, Tennessee, Utah, Wyoming, and Texas.
Several states with vaguely written trigger laws also promote themselves as friendly to assisted reproduction and surrogacy, the process in which a woman carries a third party’s embryo through pregnancy to term.
“If it does have an impact, it would be an unintended consequence,” said Ian Pittman, a founding partner at Jorgeson Pittman LLP focusing on family and fertility law in Texas. “The tricky thing is if the trigger law defines life as the moment of conception, does that mean internally in the uterus or outside of the womb in vitro?
“There are a lot of fertility clinics in Texas, and these are very expensive medical procedures. They employ a lot of people. They create a lot of tax revenue. These trigger laws are meant to prevent abortions from occurring — these IVF procedures are meant to create life.”