Infertility patients and doctors fear abortion ban could limit IVF

Anna Nibley Baker, a mother of four in Salt Lake City, is pretty sure she and her husband are done building their family. However, in the eight years since the birth of her last in vitro fertilization child, she has thought fondly of the couple’s three remaining embryos, frozen and stored at the university clinic.

Now, after the decision of the Supreme Court abortion order rollover Row vs. Wade, Mr. Baker, 47, like countless infertility patients and their doctors around the country, is dismayed that the fate of these embryos can no longer be decided by her. If states ban abortions from conception and make no distinction between whether fertilization occurs in the uterus or in a laboratory, the consequences for routine fertility treatments can be extraordinary.

In a cycle ECOarea of ​​medicine that over 40 years old and used by hundreds of thousands of heterosexual and same-sex couples, singles, and surrogate carriers in the United States, the hope is to create as many healthy embryos for each patient as possible. Physicians usually implant one or two these embryos in the uterus and freeze whatever is left for later use by the patient.

Will patients like Ms. Will Baker be banned from discarding unwanted embryos, and instead encouraged to donate them for adoption, or forced to keep them forever?

If embryos do not survive thawing for implantation, could clinics face criminal penalties?

In short, many fear that unwanted pregnancy rules may, unintentionally or not, also control people who dream about pregnancy.

Since the ruling, fertility clinics have been inundated with frantic calls from patients asking if they should, or even can legally, transfer frozen embryos to states with guaranteed abortion rights. Cryobanks and doctors also considered cautionary scenarios: A fertility doctor in Texas asked if he should hire a criminal defense attorney.

So far, the texts of the laws coming into force do not directly target embryos created in the laboratory. BUT new policy document from the American Society for Reproductive Medicine, which represents many fertility treatment providers, analyzed 13 so-called trigger laws and concluded that they do not pose an immediate threat to infertility patients and their healthcare providers. And in interviews, leading anti-abortion groups have said that assisted reproductive technology embryos are not currently a priority.

But legal experts warn that as some states develop laws, the status of these embryos, as well as patients and service providers, could become vulnerable, especially if a passionate prosecutor decides to test new territory.

Barbara Collura, President Decide, which represents the interests of infertility patients, said the organization has seen numerous legislative efforts to get government control over embryos. They failed “because we fought back and we also had support in Roe v. Wade, she said. “Obviously we don’t have that anymore. ”

Referring to the case in the ruling that overturned Rowe, she continued, “So we think Dobbs is something of a green light for those legislator fanatics who want to take it one step further.”

By using the word “pregnancy,” most trigger inhibitions distinguish their target from an embryo stored in the clinic. Prohibition in Utah, where Ms. Baker’s Lives, for example, presents abortion in the context of “human pregnancy after the implantation of a fertilized egg,” which excludes state jurisdiction over stored embryos. (What trigger law is on temporary hold.)

And the abortion law National Committee for the Right to Life as a model for government organizations and legislators refers to “all stages of development of the unborn child in the uterus of a pregnant woman from fertilization to birth.”

Representatives from four nationwide anti-abortion groups said in an interview that they strongly believe that all embryos are human beings, but that regulating IVF embryos under the abortion ban was not their top priority.

“There is so much more work to be done in so many other areas,” said Laura Echevarria, spokeswoman for the National Committee on the Right to Life, citing parental notification laws and welfare programs for pregnant women and their families. “IVF is not even on our radar.”

But Christy Hamrick, press secretary Students for lifea large national anti-abortion group noted that IVF has recently become part of the conversation.

“Protecting lives from the start is our ultimate goal, and in this new legal environment we are exploring issues like IVF, especially given a business model that is designed to end most of the lives conceived in the lab,” she said.

Clinics are not required to report the number of frozen embryos they store, so it is not possible to confirm a reliable figure in the US. most quoted number, 400,000 is from a 2002 RAND Corporation study, but the updated amount would be much higher.

Over the past year, Republican legislators in at least 10 states have proposed bills that would grant legal “personality” status to these frozen embryos. records stored by Resolve. None passed. But policy analysts at the American Society for Reproductive Medicine say these laws, which give both embryos and fetuses the legal status of a living person, “might become more common in the post-Roe world.”

RS. Hamrick of Students for Life said that “pregnancy protection” or “personality” laws have a “bright future”.

And while trigger inhibitions usually define pregnancy-related abortion, in some formulations there is concern 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 Craner, general counsel for Fairfax Cryobank, which operates embryo vaults in six states, said: “We don’t know how the states will interpret the language and nobody wants to be a test case. I can make good arguments as to why the various prohibitions do not apply to stored embryos, but I cannot guarantee that the judge will side with me if I am brought to trial.”

Sean Tipton, Representative American Society for Reproductive Medicinepredicted that patients and providers will be in a long period of uncertainty as legislators make laws and prosecutors test them.

“It’s like the Dobbs decision took the condom off. Tipton said. “And if you practice legislation without taking proper precautions, you will make several mistakes.”

While the threat that upcoming abortion bans pose to infertility patients and healthcare professionals is unclear, discussions are ongoing about preventive measures. But every suggestion can be problematic.

Judith Daar, dean of the Salmon P. Chase College of Law at Northern Kentucky University and an expert in reproductive health law, said passing a state law that would distinguish infertile patients from those seeking abortion risks having discriminatory effects, “considering that the majority of IVF patients are white, while women of color make up the majority of all abortions performed in the US.”

Some medical and legal experts have suggested a different type of end-stage: creating one embryo at a time by storing sperm and eggs separately and thawing them only to create separate embryos as needed. Strictly speaking, this approach would avoid some of the potential legal problems associated with stored embryos and circumvent legal provisions prohibiting post-fertilization abortion.

But such a practice would be inefficient given the time and cost, and also unethical given that the woman would need to be given medication and undergo a surgical procedure for each embryo transfer.

The third option, which has become the subject of discussion between doctors and patients in just the last few years, is called “Sympathetic Transfer”. A 2020 American Society for Reproductive Medicine position paper states that the term refers to a patient’s request to have embryos transferred into her body “at a time when pregnancy is highly unlikely and pregnancy is not an expected outcome.” For people who view a frozen embryo as a human life, compassionate transfer is a kind of natural death of the embryo, not destruction in the laboratory.

Katherine Krashelan expert on reproductive health law at Yale Law School, noted that clinics may be forced to store embryos that embryologists have determined are unlikely to result in pregnancy.

“It could also mean that ‘compassionate transfer’ is recommended not to respect the patient’s moral assessment of their embryos, but because the state has imposed its moral assessment on them,” she said.

RS. Baker, who became a mother through adoption and IVF, is very attached to her three frozen embryos. She struggles 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 allowing strangers to bear and raise her children, a process that many in the anti-abortion movement call “snowflake adoption.”

She cannot afford, financially or psychologically, to pay to keep them forever.

She is also not ready to unfreeze them and, as she puts it, “arrest them in a bowl.”

What is important for Ms. Baker, an intensive care nurse, is that she has the right to make choices that she considers intimate and very personal. She doesn’t believe she could have an abortion if her life wasn’t in danger, but she also believes the decision should be hers.

And so she doesn’t want state legislators to determine the fate of her embryos.

“They are part of me,” admits Miss. Baker said. “No one but my husband and me should have the right to decide what will happen to them.”