Anna Nibley Baker, a mother of four in Salt Lake City, is pretty sure she and her husband have finished building their family. Yet for eight years, since the birth of her last child, conceived by in vitro fertilization, she thought tenderly of the couple’s three remaining embryos, froze them and stored them at a university clinic.
Now, after the Supreme Court’s abortion ruling that Roe v. Wade, Ms Baker, 47, like many infertility patients and their doctors nationwide, has worried that the fate of those embryos may no longer be up to her to decide. If states prohibit abortions from conception – and do not distinguish whether fertilization takes place in the womb or in the laboratory – the implications for routine procedures in infertility treatment may be extraordinary.
In a cycle of IVF, a field of medicine that is more than 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. Doctors usually plant one or two of those embryos in the uterus and freeze any left over for the patient’s future use.
Will patients like Ms. Baker is prevented from throwing away unnecessary embryos, and rather encouraged to donate them for adoption or forced to store them forever?
If embryos do not survive thawing for implantation, can clinicians face criminal penalties?
In short, many fear that regulations on unwanted pregnancies, unintentional or not, can also control people who yearn for a pregnancy.
Since the ruling, fertility clinics have been filled with furious calls from patients asking if they should, or even legally, be able to legally transfer frozen embryos to states with guaranteed abortion rights. Cryobanks and doctors also penetrated cautionary scenarios: A Texas infertility doctor asked if he should keep a criminal defense attorney.
So far, the texts of the laws that come into force are not explicitly targeting embryos created in a laboratory. A new policy document from the American Society for Reproductive Medicine, which represents a variety of providers of fertility treatment, 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 embryos created using assisted reproduction technology are not currently a priority.
But legal experts warn that as some states draft legislation, the status of these embryos, as well as patients and suppliers, could become vulnerable, especially if a passionate prosecutor decides to test the new site.
Barbara Collura, president of Resolve, which represents the interests of infertility patients, said the organization has seen numerous legislative efforts to enforce state control over embryos. This failed “because we fought back and we also have the backing of Roe v. Wade, ”she said. “Of course we no longer have it. ”
Referring to the case in the verdict that Roe overturned, she continued: “So we feel that Dobbs is something of a green light for those legislative zealots who want to take it a step further.”
By using the word “pregnancy”, most trigger bans distinguish their target from an embryo stored in a clinic. The ban in Utah, where Ms. Baker lives, for example, estimating abortion in the context of a “human pregnancy after implantation of a fertilized egg,” which would exclude state jurisdiction over stored embryos. (That trigger law is on a temporary hold.)
And the abortion legislation put forward by the National Law on Life Committee as a model for state affiliations and legislators refers to “all stages of the unborn child’s development within a pregnant woman’s uterus from conception to birth.”
From Opinion: The End of Roe v. Wade
Comments by Times Opinion writers and columnists on the Supreme Court’s decision to end the constitutional right to abortion.
- David N. Hackney, Maternal-Fetal Medicine Specialist: The end of Roe “is a tragedy for our patients, many of whom will suffer and some of whom may well die.”
- Mary Gay: “Sex is fun. It is a problem for the Puritan tyrants who want to control our bodies. ”
- elizabeth spits: “The idea that rich women will be good, no matter what the law says, is probably comforting to some. But that is simply not true. “
- Katherine StewartAuthor“Breaking American democracy is not an unintended side effect of Christian nationalism. That is the point of the project. ”
Representatives of four nationwide anti-abortion groups said in interviews that they firmly believe that all embryos are human, but that regulating IVF embryos within abortion bans was not their first order of business.
“There is so much other work that needs to be done in so many other areas,” said Laura Echevarria, a spokeswoman for the National Law on Life Committee, referring to parental notification laws and safety net programs for pregnant women and their families. “IVF is not even really on our radar.”
But Kristi Hamrick, a spokeswoman for Students for Life Action, a major national anti-abortion group, noted that IVF has recently become part of the conversation.
“Protecting life from the beginning is our ultimate goal, and in this new legal environment we are exploring issues such as IVF, especially considering a business model that, by design, is the most life imagined in a laboratory. , end, “she said.
Clinics are not required to report the number of frozen embryos they store, so it is impossible to confirm a reliable figure in the United States. The most cited number, 400,000, is from a RAND Corporation study in 2002, but the updated total would be much larger.
Within the past year, Republican lawmakers in at least 10 states have proposed bills that would grant legal “personality” status to these frozen embryos, according to records held by Resolve. None succeeded. But policy analysts for the American Society for Reproductive Medicine said these laws, which give both embryos and fetuses the legal status of a living human, “could become more common in the post-Roe world.”
Ms Hamrick of Students for Life Action said that “protection against conception” or “personality” laws have a “bright future”.
And although the trigger ban usually defines abortion associated with pregnancy, the language resonates in some uncomfortable in the world of infertility. Arkansas, for example, defines an unborn child as “an individual organism of the species Homo sapiens from conception to live birth.”
Sara Kraner, general adviser to Fairfax Cryobank, which operates embryo storage facilities in six states, said: “We do not know how states will interpret the language, and no one wants to be the test case. I can make good arguments as to why the different prohibitions do not apply to stored embryos, but I cannot guarantee that a judge will join me if I am taken to court. ”
Sean Tipton, a spokesman for the American Society for Reproductive Medicine, predicted that patients and providers are in a long period of uncertainty as lawmakers submit laws and prosecutors try them out.
“It’s as if the Dobbs decision has removed the condom,” he said. Tipton said. “And if you practice legislation without taking proper precautions, you’re going to make some mistakes.”
Although the threat posed by the forthcoming abortion ban to infertility patients and providers is unclear, discussions are underway on preventive measures. But any proposal can be problematic.
Judith There, dean of the Salmon P. Chase College of Law at the University of Northern Kentucky and an expert in reproductive health law, said the adoption of a state law that would distinguish infertility patients from those seeking an abortion, a discriminatory impact, “given that the majority of IVF patients are white, while women of color are responsible for the majority of all abortions performed in the United States.
Some medical and legal experts have suggested a different type of endgame: creating one embryo at a time by storing sperm and eggs separately and simply thawing them to create individual embryos as needed. Strictly speaking, that approach would avoid some of the potential legal issues posed by stored embryos and would circumvent statutory language that prohibits abortion after conception.
But such a practice would be ineffective, given the time and cost, as well as unethical, as the woman must receive medication and undergo a surgical procedure for each embryo transfer.
A third option, which has only come up in discussions between doctors and patients in the last few years, is called “compassionate transfer”. A 2020 position paper by the American Society for Reproductive Medicine says the term refers to a request by a patient to transfer embryos into her body “at a time when pregnancy is highly unlikely to occur, and when pregnancy is not the intended outcome is not. ” For people who see the frozen embryo as human life, a compassionate transfer is a kind of natural death for the embryo, rather than having it destroyed in a laboratory.
Katherine Kraschel, an expert in reproductive health legislation at Yale Law School, noted that clinics could be forced to store embryos that embryologists have determined are unlikely to lead to a pregnancy.
“It could also mean that ‘compassionate transfer’ is recommended not to respect a patient’s moral valuation of their embryos, but because the state has imposed its moral valuation on them,” she said.
Ms Baker, who is a mother through adoption as well as IVF, feels deeply attached to her three frozen embryos. She is struggling to find a way forward, especially now, as the Supreme Court’s abortion ruling casts a shadow over their future.
She cannot imagine donating it to another couple, and in fact having strangers give birth and raising her children, a process that many in the anti-abortion movement call a “snowflake adoption.”
She can not financially or psychologically afford to pay for their storage forever.
She is also not ready to thaw them and, as she put it, “arrest them in a dish.”
What matters to Ms Baker, a critical care nurse, is that she has the right to make choices she considers intimate and highly individual. She does not believe she can ever have an abortion unless her life was in danger, but she also believes the decision should be hers.
And therefore she does not want state legislators to point out the fate of her embryos.
“They are separate from me,” Ms Baker said. “No one but my husband and I should have the right to decide what happens to them.”