When Lauren Mitchell began her first cycle of in vitro fertilization in 2019, her lab asked for consent to donate any unhealthy embryos for scientific research.
She and her husband Wayne Ayo – who had their second daughter through IVF in 2020 – opted to sign the consent form. But now that Roe v. Wade has been overturned, the Houston resident is among many IVF patients worried that state laws banning abortion could also have serious consequences for fertility treatment.
The 37-year-old mother is concerned that if a law defines life as beginning at fertilization – and does not specify whether that occurs in a womb or in a lab – discarding embryos could be considered a crime.
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“It was kind of a joke, like, ‘Will this come back to haunt us because we live in Texas,’” Mitchell said. “And now it could.”
As “trigger laws” banning or severely restricting abortion take effect in Texas and other states, many fertility clinics and patients are concerned they could also apply to routine aspects of fertility treatment. They wonder if doctors would be allowed to conduct genetic testing on an embryo to check for abnormalities; whether patients would be allowed to discard unhealthy or unused embryos; and whether clinics could face criminal penalties if an embryo is accidentally destroyed or does not survive being thawed for implantation.
Doctors and legal experts say that at the moment, they do not anticipate IVF will be affected by any laws that have already been passed. But some are concerned there could be unintended consequences as states continue to pass laws prohibiting abortion.
“I don’t think that any lawmakers intend to curtail fertility services – I really don’t think that’s their intention at all,” said Dr. Thomas Hickman, the medical director of CCRM Fertility of Houston. “But I think there’s a potential that in this abortion debate, what’s appropriate and what’s not appropriate, IVF services could be an innocent bystander.”
In vitro fertilization has been growing in popularity for decades, especially as more people delay childbirth until later in life. The process aided in the birth of nearly 84,000 children in 2019 alone, according to data from the U.S. Centers for Disease Control and Prevention. Overall, 2.1 percent of all children born in the U.S. in 2019 were conceived with the use of assisted reproductive technology, of which IVF is the most popular.
The process involves collecting mature eggs from a patient’s ovaries, then fertilizing them outside the body. Those fertilized eggs, or embryos, are transferred to the patient’s uterus, according to the American College of Obstetricians and Gynecologists.
Patients often undergo another procedure called preimplantation genetic testing (PGT), which screens them for genetic mutations for diseases such as Huntington’s, sickle cell anemia and muscular dystrophy.
Because IVF is so expensive – the average cost of one cycle is $12,400 – many patients try to increase their chances of success by creating more embryos at one time. If a patient does have additional healthy embryos, they are typically frozen and stored in a lab.
If a patient has more embryos after having a child, they need to decide whether to try for more children, donate them to someone else who is trying to become pregnant, donate them for scientific research or discard them. If an abortion law also restricted IVF, the latter two options could be off the table.
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Mitchell, who still has one healthy embryo in storage, is among the IVF patients who could be forced to make a difficult decision if the process is affected by a new law. She and her husband have two daughters – 7-year-old Fiel and 21-month-old Imre – but have not decided whether they will continue to grow their family. She feels pressure to make a decision soon because she’s unsure whether she’ll have as many options in the future.
“We don’t want to be forced to have to donate that embryo, if that goes against our will,” she said.
Implications for IVF
The American Society of Reproductive Medicine’s Center for Policy and Leadership conducted an analysis of 13 trigger laws set to take effect after Roe v. Wade was overturned, including the one in Texas. It determined they were unlikely to apply to IVF.
Most of those laws are written in the context of a pregnancy, said Seema Mohapatra, a professor at Southern Methodist University’s Dedman School of Law who is an expert in health law and bioethics.
In some states, though, the language included in abortion bans is so broad that it’s possible someone could make the cases they also apply to IVF, Mohapatra said.
“The concern has been that some of these laws are written in such a broad way that even when you have an egg and sperm fertilized in a petri dish, that embryo is somehow given rights where discarding them would be akin to murder or homicide,” she said.
Dr. James Choung, a reproductive endocrinologist who is the medical director of the Cooper Institute for Advanced Reproductive Medicine in Houston, argued that IVF and abortion are very different. He is hopeful that IVF will not be affected, but is monitoring any developments.
“We are working in this industry to help couples who are having difficulty getting pregnant,” he said. “It’s really a different scenario.”
If a new law did prohibit embryos from being discarded, a fertility clinic would likely produce fewer embryos during each IVF cycle, Choung said. That would lower the chance of success for the expensive process.
While there does not appear to be any imminent threat to the IVF process, that could change if a state pushes to extend legal rights to fetuses or embryos, Mohapatra said. Such “fetal personhood” laws have been proposed before, and some experts have theorized they could be the next target for anti-abortion activists now that Roe v. Wade has been overturned.
Hickman said those types of proposals would be problematic. While fertility clinics have faced lawsuits over embryos that were accidentally destroyed, Hickman worried they could also face criminal penalties if an embryo were mistakenly destroyed in a state that enacted a fetal personhood law.
“We have not seen the personhood laws ever pass. But if somehow that become popularized in some state, that would be an issue,” he said.
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Some fertility clinics and their patients are already seeking to avoid any legal questions by preemptively moving their embryos to another state that is highly unlikely to restrict abortion. Mitchell said she has considered doing the same, but is waiting to meet with her doctor in a few weeks before she makes any decision.
Mohapatra said there is enough uncertainty surrounding the issue that if she had embryos in storage in a state that is banning abortion, she would consider shipping them elsewhere.
“I don’t think there’s an immediate risk for your embryos,” she said. “But if I had frozen embryos in Texas, I would be looking at [moving them to] states that I know are going to be … free from abortion restrictions.”