After battling infertility for several years, Melissa says she finally saw a glimmer of hope through in vitro fertilization. She and her husband began working with a fertility center in Grand Rapids, Michigan, in March 2021 and have produced and frozen several embryos.
Melissa hopes to eventually get pregnant for the second time this winter. But when the U.S. Supreme Court decision overturns Roe vs. Wade came down, she started to worry.
“I’m sitting here desperate for babies – desperate,” she said. “And that can seriously affect whether I can expand my family, whether I can afford it, whether I want to risk it.”
NPR agreed to use only her first name because she is concerned about potential retaliation from abortion opponents.
Melissa’s fear is that a Michigan law banning abortion (which is currently in legal limbo) could potentially jeopardize fertility treatments, such as in vitro fertilization. Residents of other states where abortion is banned or pending a ban have similar concerns.
Their concern could be very real, says Judith Daar, a law professor at Northern Kentucky University who specializes in reproductive health.
She says that when the Supreme Court decision overturned Roe vs. Wade referred to “unborn human beings”, it indirectly raised the issue of IVF. And it will be up to state legislatures to determine how abortion laws affect fertility treatments.
“If the Legislature regards unborn human life in its earliest moments as something worth protecting over other interests, including the interests of patients and the upbringing of their families, then restrictive laws to in vitro fertilization could be adopted,” she said.
Human rights for embryos?
During IVF, doctors take eggs from a patient’s ovaries and fertilize them with sperm in a lab to create embryos. They transfer these embryos to a uterus, discard them, or freeze them for later use.
A handful of state abortion bans define life as beginning at fertilization, although they do not specifically target the IVF process. Other states are trying to pass legislation that would grant embryos, fetuses, and fertilized eggs personality rights and, in some cases, constitutional rights.
Such laws “would pose a concrete threat to the common practice of IVF,” says Daar. The concern is that these laws treat a frozen embryo as human life and doing things like genetic testing it during the IVF process, or throwing it away, could become illegal.
“If an early embryo is considered a person for the purposes of legal rights and protections, any action other than transfer to the womb could be considered a violation of their right to life under these new laws,” said Daar said.
Michigan’s 1931 abortion ban law is on hold as courts consider a lawsuit Governor Gretchen Whitmer filed in the Michigan Supreme Court challenging the law’s constitutionality. Until the courts decide if the law is valid, abortions continue to be legal in Michigan.
But if the law is upheld and goes into effect, there is uncertainty about whether health workers at IVF clinics could face criminal charges for discarding embryos.
Michigan Attorney General Dana Nessel said she fears the 1931 law will impact the practice of IVF because of its ambiguity.
“If you’re going to say some of them can’t be implanted – we’re going to get rid of them,” Nessel asked at a press conference last month, “are you now committing a criminal offense by doing so? “
In other states where abortion is strictly prohibited, such as Alabama and Oklahoma, officials have clarified that their current abortion bans will not affect IVF treatments.
Contemplating difficult choices
With so much uncertainty about the law, patients like Melissa fear finding themselves in a situation with few good options.
“What is the clinic going to have to pivot on? Will they be able to make more than one embryo at a time? Can frozen embryos ever be discarded?” Melissa asks.
She has seven spare embryos, four of which are not viable. To avoid discarding any, she may have to keep her non-viable embryos frozen indefinitely.
In this scenario, Melissa says, “my options would be to pay for them to stay in storage for the rest of our lives, which is very expensive, or to transfer them to my womb and see what happens.”
Another possibility would be to move the embryos to more permissive states, such as New York. But the cost of the transfer can be very high.
“We don’t recommend people move embryos, but that could certainly change depending on what actions a particular state might take and how we think it affects people’s rights to their embryos,” Barb said. Collura, president and CEO of Resolve: The National Infertility Association.
Although there is no legal precedent for suing health care providers if they are unwilling to implant a dangerous number of embryos, Collura says providers are concerned about what will happen in states with strict abortion bans that do not clarify the issue of IVF. .
“If you believe an embryo is a person, then maybe even if that embryo is outside the body, you want to make sure it’s protected and no harm happens to it,” she says. . “And that’s where we run into some problems. Because there are things that are done as standard practice in a lab during IVF that some may see as causing damage to that embryo.”
Collura says strict abortion bans could force providers to close their practices in those states. “In some cases, it would actually be very difficult for doctors to do what they need to do in an IVF cycle,” she says. “So our questions are really: how far will lawmakers go? And what impact will it have on our community? »
IVF treatment can cost between $10,000 and $20,000 without health insurance, and most private insurance companies do not cover the cost of treatments. Travel for care adds expense to that. Michigan State University ethicist Sean Valles fears a state ban banning IVF could widen the gap in access to care.
Valles says those who can afford it will be able to leave the state to seek treatment in “one of the many jurisdictions in the United States or outside the United States where abortion is legal.”
“And so both the ability to start a family or delay having one or delay having a family, these will increasingly become the prerogative of people who have money, connections and racial privileges,” he said.
With a pause on Michigan’s abortion ban in place, Melissa and her husband say they look forward to the state courts ruling in favor of abortion rights so that they can continue to grow their family.