Since the U.S. Supreme Court overturned Roe v. Wade — the 1973 ruling that established abortion as a constitutional right — patients suffering from infertility and their doctors have grown concerned that fertility treatments, particularly IVF, could be affected by new state abortion bans.
Dr. Stephanie Gustin, a fertility doctor in Nebraska, and Jody Madeira, a professor at Indiana University’s law school, explain why IVF could potentially be at risk after the reversal of Roe v. Wade.
STEPHANIE GUSTIN: 1 in 8 couples experiences infertility in the United States. And actually, it's quite possible that there's actually a higher prevalence of that. And a large quantity of patients who experience infertility need IVF in order to grow or expand their families.
So IVF stands for in vitro fertilization, where we are able to take eggs from a woman's body, fertilize them with sperm in a lab, culture embryos, and then transfer those embryos or embryo, ideally, back into the woman's uterus.
JODY MADEIRA: IVF is a procedure that has been around since the 1970s. It's been successful since 1979. And the chances have incredibly improved that one can build a family through IVF.
JOE BIDEN: Supreme Court of the United States expressly took away a constitutional right from the American people that it had already recognized. Now, with Roe gone, let's be very clear-- the health and life of women in this nation are now at-risk.
JODY MADEIRA: There's a lot of ways in which any abortion legislation that is passed can affect IVF. What is noteworthy is, to date, other laws that have been passed have specifically exempted IVF and other reproductive procedures in hopes that this will not interfere with family-building activities.
Unfortunately, I think there will be a lot of legislators that are zealously seeking quickly to pass abortion legislation. And, unfortunately, those zealous attempts are going to not be specific as to what procedures they will affect.
STEPHANIE GUSTIN: We're getting calls daily, and multiple times throughout the day, as to, I was going to start treatment. Should I start treatment still? I'm in the middle of treatment. Should I continue my treatment? I have embryos frozen. Are they safe? Do they need to be transported out of the state?
What, I think, is the biggest concern are bands that are centered around personhood and sort of giving an embryo, particularly an embryo that was just identified the day after the egg was injected, the same sort of rights as a human that is walking, breathing, talking, whatnot on the planet right now. And those are two very different things.
Less than 20% of these initial fertilized eggs or embryos actually develop into a baby. By giving those very early cells that have exhibited fertilization the same rights and then criminalizing anything that is associated with any destruction of that life is problematic.
JODY MADEIRA: Currently, only one state has a bill or a law on the books that says an embryo is a juridical human being, and that's Louisiana. It has had that law since the late-1980s. And actually, it was passed with the cooperation of reproductive medical clinics in the state. It specifically exempts IVF.
And again, it sets sort of this two-tier hierarchy-- you know, embryos created through IVF, embryos created outside of IVF. And I think what we're going to see are a lot more states who say life begins at fertilization, life begins at conception. And so from the moment of fertilization or conception, that particular embryo, if it doesn't state otherwise, whether or not conceived in vivo, inside the uterus, or ex-vivo, outside the uterus, is actually a juridical human being.
And you would specifically have to exempt IVF in order to keep this procedure safe legally. Doctors will, I think, really pull back if these clarifications are not made. The questions include, can embryos be tested? Can you select embryos based on certain characteristics?
For example, you can't right now in many states abort a fetus for a reason such as down syndrome. Can you destroy an embryo for reasons such as down syndrome? Can you choose not to transfer an embryo for reasons such as down syndrome?
And again, if we're treating these as juridical human beings, those laws already have parallels in abortion contexts. Will individuals be transferring their embryos across state lines to blue states that are going to be abortion havens out of so-called abortion deserts in the Midwest and the South?
If there is conflation between IVF or other reproductive technologies and abortion, I believe it will increase costs for patients. I believe it will decrease access for patients. And I also believe it will make the procedures more dangerous for women on several fronts.
First of all, in terms of access, I believe a lot of doctors will simply throw in the towel and say, look, I don't know if I'm going to be arrested for practicing reproductive medicine. And so I can't. And they might shut down. They might move to other states. So that will create fertility deserts.
And unfortunately, it's going to make the procedure more expensive because individuals are going to have to perhaps, if there's only one embryo that can be created, if there are limitations on embryos being frozen, for example, they're going to have to go through IVF multiple times in order to get pregnant.
STEPHANIE GUSTIN: It's really important that people share their stories. In general, I think infertility is a very personal journey. But now more than ever, infertility needs a face. We need our entire country aware of this issue, aware of the fact that these broad sweeping abortion bans could impact a couple's or a person's desire to be a parent.
And that wasn't the intent or shouldn't be the intent of these bills. And so I think we need to band together, create a phase, and then we need to vote, and talk to our legislatures, and get everybody else at the table.