Fallout from Alabama's IVF decision: What does it mean for Massachusetts?

Melanie Smith has undergone in vitro fertilization procedures since early in the COVID-19 pandemic. It has been a long and exhausting road in her attempt to get pregnant including numerous blood tests, scans, ultrasounds, surgeries and months of taking medications. 

On top of the exhaustion this 37-year-old Norfolk resident endured in order to potentially give birth to her first child, Smith worries about future access to IVF, especially after this month's ruling by the Alabama Supreme Court that frozen embryos are children based on that state's law and therefor can’t be destroyed.

The decision could be appealed and work its way up to the Supreme Court of the United States. That is a prospect that concerns Smith because the court's conservative majority could side with Alabama and concur that frozen embryos are people and can't be destroyed, possibly limiting access to IVF nationwide because providers could fear potential criminal prosecution.

“(IVF) is a difficult-enough process without having to go through boundaries and hurdles put up by laws based on religious beliefs,” Smith said, alluding to language in the Alabama court's concurring opinion that is heavy on Scripture and theology.

Already, several IVF providers in Alabama have ended operations for fear of potential criminal liability and Smith fears a similar outcome could happen nationwide if the U.S. Supreme Court gets involved.

“In Massachusetts, there are laws enshrined to protect women, so we should not start to freak out just yet. But (a SCOTUS ruling that could end IVF treatments nationwide) is a possibility," she said.

Meanwhile, some congressional Republicans are expressing support for IVF. However, some of the same Republicans reportedly support legislation called the Life at Conception Act that includes several definitions of a human being including at the moment of fertilization.

Massachusetts: Grounded in IVF

Massachusetts was one of the first states to require insurance companies to cover infertility treatments including IVF in 1987. The state also has the second-highest percentage of babies born through assisted reproductive technology (nearly 6%), trailing only Washington, D.C.

Nationally, just over 2% of babies in 2021 were conceived through the technology. At UMass Memorial Health, the health system's IVF Center has roughly 300 patient visits annually on average. Last year, UMass reported 144 embryo retrievals, 49 transfers, 147 frozen transfers, 108 pregnancies and 28 live births.

The U.S. Centers for Disease Control and Prevention reported numbers at the UMass IVF Center in 2021 when the program started: 13 pregnancies, 11 deliveries and 12 infants born. A UMass doctor was not available for comment.

Boston IVF, with an office in Worcester, did not have a physician available for comment. The doctors at Boston IVF are affiliated with Beth Israel Deaconess Medical Center and Harvard University's School of Medicine.

Here's how IVF works

Fertility injections stimulate egg production and the eggs are combined with sperm in a lab to produce embryos. Doctors determine the embryo that likely has the best chance of resulting in a pregnancy and the embryo is transferred into the uterus.

Other viable embryos are frozen for possible future use and some are discarded because it is determined they are abnormal and can’t result in pregnancy.

IVF insurance mandate in Mass.: Not universal

While Massachusetts requires insurance companies cover the cost of infertility treatments, it’s not universal. The mandate reportedly doesn’t cover the cost of freezing eggs and sperm. Also, public health plans including Medicare and MassHealth (the state’s Medicaid insurance plan) are exempt from the mandate, according to the National Institutes of Health. In addition, those who are self-employed and offer insurance to their workers aren’t required to have policies that pay for IVF.

Due to the exemptions, only 26% to 36% of women in Massachusetts of childbearing age are covered by the mandate, according to an NIH study from 2016 to 2019.

No immediate impact

Several Massachusetts lawmakers — Democrat and Republican — noted the Alabama ruling has no immediate impact in Massachusetts because the state has laws on the books that protect reproductive services.

However, some Democrats appear to harbor trepidation about what could happen if an appeal makes it way to the U.S. Supreme Court.

“Every woman should be concerned with the trajectory of the (federal) government and the U.S. Supreme Court stripping back our reproductive rights. We all know, overturning Roe was just the beginning,” said state Sen. Robyn Kennedy, D-Worcester. “We will continue in Massachusetts to protect and expand reproductive rights.”

State Rep. Michael Soter, R-Bellingham, also believes the high court will have a role to play. “In the back of my mind, I could see a (SCOTUS) ruling come down. We’ll have to look at how it affects Massachusetts in any way.”

U.S. Rep. James P. McGovern, D-Worcester, said Congress needs to enact federal laws to protect IVF and other reproductive services, but he said that won’t happen because Republicans block all efforts to do it. The only way to achieve change, McGovern said, is for Democrats to win elections and gain a majority control in the House.

Meanwhile, the Worcester Diocese follows Catholic Church teachings and opposes IVF, according to a diocese spokesman.

"The church says 'no' to IVF due to the massive destruction of embryonic life, the assault on the meaning of the conjugal act by 'manufacturing' embryos, and the treatment of the child as a product not a gift," said a diocese statement. "Another way as explained on the U.S. Bishops’ website, 'In IVF, children are engendered through a technical process, subjected to ‘quality control,’ and eliminated if found ‘defective.’”

Massachusetts Citizens for Life issued this statement: "We would hope that any embryos created through IVF would be allowed to grow and thrive like any other preborn child."

'Unprecedented, shocking, devastating'

Those adjectives were spoken by Kate Weldon LeBlanc to characterize the Alabama ruling. LeBlanc is executive director at Resolve New England, a nonprofit that gives support, education and advocacy in fertility and family building.

Like some Massachusetts lawmakers, LeBlanc said the Alabama decision poses no immediate risk to fertility care or embryos in Massachusetts. But that doesn’t mean there aren’t storm clouds on the horizon. “The potential fear for (Resolve New England) is a lot of things start on the state level, spread to other states and in a case like this one that could go to SCOTUS. There is potential impact for the whole country.”

Massachusetts can't rest on its laurels, said LeBlanc. She noted the state has laws that are 40 years out of date when it comes to the modern dynamics of what constitutes a family, especially when reproductive services are involved.

One pending state bill that Resolve New England supports to bring Massachusetts in line with current times is an Act to Ensure Legal Parentage Equality, known as the Massachusetts Parentage Act. It updates current law to protect all children, regardless of circumstances at birth, according to Gay & Lesbian Advocates & Defenders.

Among its protections, the act clarifies how to establish parentage for children born through assisted reproduction like IVF. Currently, the law doesn't treat children equally, with some forced to wait six months or longer to achieve a parent-child relationship.

Possible SCOTUS avenues

Marsha Kazarosian, former president of the Massachusetts Bar Association and a practicing attorney, doesn’t think the Alabama ruling will reach the U.S. Supreme Court on appeal.

However, if an appeal does reach the highest court in the land, then Kazarosian said the argument could hinge on whether the Alabama ruling deprived someone of their rights under the U.S. Constitution. She also noted Alabama's concurring opinion included language heavy on religion that arguably violated the Establishment Clause in the U.S. Constitution's First Amendment that prohibits the government from establishing a religion.

A legal argument could also be presented that the Alabama court interfered with someone’s rights to have children, but Kazarosian said such a tact is likely not viable.

The bottom line, as Kazarosian sees it, is all bets are off if SCOTUS hears an appeal. “If it gets there, with the makeup of the court, who knows what will happen."

Contact Henry Schwan at henry.schwan@telegram.com. Follow him on X: @henrytelegram.

This article originally appeared on Telegram & Gazette: What does Alabama's IVF decision mean for Massachusetts?