WASHINGTON — The end of Roe v. Wade would bar women across much of America from aborting a pregnancy. But it also may restrict millions more people trying to get pregnant.
State laws banning abortion entirely could unintentionally complicate access to in vitro fertilization, the process of creating embryos outside of the womb that results in over 55,000 babies each year, or 2 percent of annual births in the United States.
More than 2.5 million Americans in same-sex couples or struggling with fertility issues go through IVF each year, fertilizing as many eggs as possible in order to maximize their chances that one embryo results in a successful pregnancy. But the process often results in nonviable embryos, or more embryos than needed. Experts in the field now warn that state laws defining fertilization as the moment life begins could throw the procedure into legal jeopardy.
“IVF can and will absolutely be implicated in some of these states, and that’s something that lots of LGBTQ people and Americans more generally rely on to create their families,” said Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign. “It is a very significant addition, one that people are not very aware of and frankly are not going to agree with.”
Thirteen states have prepared “trigger laws” that ban abortion if the Supreme Court rules to overturn Roe — a possibility that became palpable this week when a draft decision reversing the 50-year-old precedent leaked to Politico.
Many of those laws define life as beginning at “the moment of fertilization.”
“The trigger laws themselves are not aimed at prohibiting assisted reproduction or IVF and likely will not have that immediate effect,” said Catherine Sakimura, deputy director and family law director at the National Center for Lesbian Rights. “But some of the language of these laws broadly discuss life as beginning at conception, and this language could lead to interpretations that limit or prohibit IVF, because the process of IVF can create embryos that do not result in pregnancies or in viable pregnancies.”
States with trigger laws include Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Oklahoma, Tennessee, Utah, Wyoming and Texas.
IVF came into existence in the Roe era, with the first baby conceived through in vitro fertilization in 1978 in Britain and the first in the United States in 1981.
By 2018, a Pew Research Center poll found that more than a third of Americans either knew someone who had turned to assisted reproduction or had used it themselves.
The process involves an intended mother or egg donor taking hormone medications that cause their bodies to release more than one egg at a time, limiting the number of surgeries necessary to collect eggs. Retrieved eggs that make it to maturity are then fertilized with sperm, and the ones that survive fertilization are cultured in a lab to a point of viability — typically between three to five days — before being frozen or transferred to a womb.
Sakimura said that the end of Roe will likely lead to “other broader laws that could directly limit or prohibit IVF.”
“Many of the embryos created through IVF are not viable and cannot grow into a baby,” Sakimura said, noting that the same process happens naturally in women trying to get pregnant. “For this reason, more than one embryo is usually created in the IVF process to increase the possibility of pregnancy and live birth. Often, genetic testing is used to see if an embryo has genetic conditions that would prevent a live birth, and visual inspection is used to identify embryos that do not seem to be developing properly.”
Several organizations long opposed to abortion rights have also fought against standard IVF procedures, including the discard or donation of unused embryos, or embryos that doctors say have no chance of resulting in a healthy pregnancy.
“Would a repeal of Roe v. Wade impact access to assisted reproduction and family building? We don’t know, and we will stay vigilant,” said Polly Crozier, senior staff attorney at GLBTQ Legal Advocates & Defenders. “So many people, including many LGBTQ people, build their families through assisted reproduction. It’s unthinkable, given how important this path to parentage is, that assisted reproduction is going anywhere.”
Several states with vaguely written trigger laws also promote themselves as friendly to assisted reproduction and surrogacy, the process in which a woman carries a third party’s embryo through pregnancy to term.
“If it does have an impact, it would be an unintended consequence,” said Ian Pittman, a founding partner at Jorgeson Pittman LLP focusing on family and fertility law in Texas. “The tricky thing is if the trigger law defines life as the moment of conception, does that mean internally in the uterus or outside of the womb in vitro?”
“There are a lot of fertility clinics in Texas, and these are very expensive medical procedures. They employ a lot of people. They create a lot of tax revenue,” Pittman continued. “These trigger laws are meant to prevent abortions from occurring — these IVF procedures are meant to create life.”
Michael Wilner, McClatchy Washington Bureau