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IVF in Post-Roe America: Will It Be Restricted?

Ovaterra

Last updated July 01, 2022

On June 24, 2022, the Supreme Court of the United States overturned Roe v. Wade, revoking the almost 50-year-old constitutional right to abortion. The ruling effectively allows individual states to regulate abortion access, many of which have bills and existing laws to severely restrict abortion or ban it entirely.

While not the most obvious, legal and medical experts warn that restrictive abortion laws and the so-called personhood bills in many states can impact fertility treatments, like IVF, and other reproductive healthcare beyond abortion. In 2019, 2 out of ever 100 babies born in the US were IVF babies. That’s over 83,000 babies and 330,000 IVF cycles this SCOTUS decision can potentially impact.

We will have to watch how this will all unfold as legal challenges to restrictive abortion laws are brought and weighed against state constitutions. Broad, vague wording of many anti-abortion laws also add to the uncertainty around how the laws are interpreted and enforced. To a degree, this is all speculative at this point – but here are what we have seen discussed, and believe you should be aware, especially if you are undergoing – or considering – fertility treatments like IVF.

 

What are personhood bills?

Some states’ anti-abortion laws and proposed bills define a fertilized egg (embryo) as a human being in the legal sense. This is incongruous with the long-held clinical and federal policy definition of a pregnancy, which begins when a fertilized egg (embryo) implants in the uterus. When an embryo is defined as a legal person, as in the case of these “personhood bills,” harming an embryo – for example, by not transferring it to the uterus after an IVF cycle – can be interpreted as a criminal act.

 

Will IVF be banned?

Legal and medical experts say that an outright ban on IVF is unlikely, at least for the moment. While some groups do oppose IVF, according to a Forbes article, there doesn’t seem to be the same level of political appetite to take away the technology that helps people have children.

 

Is this wishful thinking? We don’t know. (After all, just 5 years ago, most people wouldn’t have predicted that Roe v. Wade would be overturned. Even the justices who concurred to overturn Roe last week had said, during their confirmation hearings not that long ago, that Roe wouldn’t be overturned.) But for now, the end of Roe v. Wade is more likely to affect IVF in less drastic ways than an outright ban.

 

IVF with fewer embryos?

To understand how abortion laws may impact IVF, we need to understand how IVF is designed to help women get pregnant. In a successful IVF cycle, more than one embryos are created, in order to increase the chance of a pregnancy. Depending on your medical history and preference (and sometimes the practice philosophy of the IVF center), just one or a few of these embryos are transferred into the uterus to establish a pregnancy. The rest are usually frozen.

The frozen embryos can be used for another attempt at pregnancy if the first transfer doesn’t work; they can also be used to add more children to the family later on. You can think of each extra embryo as an additional chance for a future pregnancy.

Transferring frozen-then-thawed embryos is a much easier process for patients than a full IVF cycle. It’s also much less costly, because a frozen embryo transfer requires much less medication, involves less monitoring appointments and skips egg retrieval, which is an outpatient surgical procedure that constitutes a major part of the IVF cost. 

A decision many IVF patients face – one that’s not widely discussed – is what to do with the extra embryos after their family is complete. Some decide to donate remaining embryos to others who are also struggling. Some are donated for research. Yet others are discarded.

In states with personhood bills, using excess embryos for research or having them discarded may become a prosecutable crime. That can have a few consequences, as fertility patients, doctors and embryologists try to reduce their legal risks.

A relatively straightforward way around the issue is to create one or two embryos per IVF cycle, just enough to transfer to the uterus.

 

 

IVF may become less successful and even more costly

Creating just enough embryos to transfer may sound simple, but it’s not. Because not all embryos created in an IVF cycle develop to the transferrable stage, doctors and patients will have to guess how many embryos they need to create in order to have the “right” number of embryos to transfer.

When avoiding extra embryos becomes paramount, some patients will inevitably end up with no embryos to transfer – after all the money, effort and emotional energy spent on the cycle.

No extra embryos for later transfers also means that the chance of pregnancy per IVF cycle will be lower. When the first attempt doesn’t result in a pregnancy, instead of thawing a frozen embryo and transferring it in a subsequent cycle, you would have to start all over again with ovarian stimulation, monitoring and egg retrieval.

In short, IVF may:

  • Become less successful than it is now;
  • Involve more logistical challenges with more cycles necessary to have one baby;
  • Lead to more emotional turmoil as unsuccessful cycles become more likely;
  • Come with a much higher cost to have a baby to take home with you;
  • End up excluding even more people through a higher cost barrier to access.

 

What should you do if you already have frozen embryos in storage?

There is another potential implication, if you already have frozen embryos stored at fertility centers in states like Kentucky, Texas and Louisiana. These states (and others that may join in) intend to ban virtually all abortions after fertilization and define human life as starting at fertilization. 

Discarding frozen embryos in these states can involve legal risk. To avoid possible prosecution, you may need to move the embryos out of state before discarding them or donating them to research. In the coming months, we may start seeing clinics collaborating across state lines to facilitate this process.

 

What about preimplantation genetic testing?

Preimplantation genetic testing for aneuploidy (PGT-A) is an add-on service to IVF that (at least theoretically) allows fertility patients to select embryos with the best developmental potential. In theory, identifying embryos with a normal set of chromosomes and putting a normal one back into the uterus should improve the chance of a pregnancy and birth of a healthy baby.

While some reproductive endocrinologists question the validity and efficacy of PGT-A, it’s a very common service add-on at IVF centers, with some using the test in almost all of their patients (which, again, is controversial in its own right). In 2020, the most recent year for which we have the CDC data, nearly half of all IVF cycles in the US were accompanied by PGT-A.

State laws that define fertilized egg/embryo as a legal person can jeopardize the availability of PGT-A to patients who want or need it. Most chromosomal abnormalities are lethal – meaning that a chromosomally abnormal embryo cannot survive in most cases. However, PGT-A will also identify embryos with non-lethal abnormalities that still have serious health consequences, such as Down syndrome and trisomy 18. Doctors, embryologists and patients may become at risk of criminal charges in states with “personhood” laws, if they decide to discard embryos that PGT-A identifies as abnormal but still viable. 

Chromosomal abnormalities are very common, affecting 10-50% of embryos, largely depending on the female age. Combined with the widespread use of PGT-A, this may mean that a large number of fertility patients face this situation in high-risk states.

 

Uncertainty can encourage defensive practice

Broad, vague and scientifically unsound wording of many anti-abortion laws will put doctors and embryologists in a difficult position: What they believe is the best care for you may very well bring legal risk to them, their practice – and you.

We know doctors sometimes dispense care that’s not well founded to meet patients’ demands or protect themselves from potential malpractice lawsuits. As doctors, IVF centers and health systems try to navigate the uncertainty around state abortion laws in similar ways, it’s possible the standard of care in fertility medicine declines in states with restrictive, vaguely defined abortion laws.

Even if lawmakers say they have no intention of targeting IVF, activist lawyers and bounty hunters can bring lawsuits against healthcare providers and institutions in states like Texas. Lawsuits may eventually be ruled in favor of the doctors and IVF centers, but it can still leave them with legal bills and massive disruption. This is another likely reason for fertility specialists to turn to defensive practice.

 

Miscarriages and ectopic pregnancies

Restrictive abortion laws can also affect miscarriages and ectopic pregnancies, a traumatic and unavoidable reality for many on the journey. Some seek fertility care precisely because of repeat miscarriages; others face pregnancy losses after receiving fertility treatment. Some pregnancies, whether naturally conceived or via IVF, implant in the fallopian tubes (i.e., ectopic pregnancies) and are not viable.

Evidence-based medical care to manage miscarriages and ectopic pregnancies can be at risk in states with restrictive abortion laws. For example, doctors may fear criminal prosecution for performing necessary medical care to remove the product of conception that doesn’t naturally come out. Miscarriage itself can become a target of investigation.

Implications of the SCOTUS decision on miscarriages and ectopic pregnancies are complicated and far-reaching. We will cover this topic in a future post.

 

What to do when you are undergoing or considering IVF

The first step is to understand how the SCOTUS decision may impact your own fertility journey, based on what state you live in. The list below only focuses on this aspect of reproductive healthcare – countless others, including CoFertility, Dr. Aviva Romm, Mama Glow, and of course, Planned Parenthood, have put together lists of resources and actions for the much bigger picture, and journalists have reported on implications beyond IVF, as we are sure you have seen.

  1. Determine if you are in at-risk state. Guttmacher Institute has an interactive map of abortion restrictions by state that’s updated constantly. Resolve.org’s list of state laws and bills that define personhood as starting at fertilization is also relevant for those of you seeking IVF.
  2. Talk to your doctor. If you are in a state with a restrictive abortion law or a state where one is likely to pass, ask if they think your treatment plan may need to be modified in any way. Your doctor likely doesn’t have all the answers, but start the conversation now so that you can research your options.
  3. Talk to a lawyer. Consulting an attorney specializing in reproductive healthcare may be a good idea, especially if you live in a high-risk state, have a complicated case or have specific concerns that your doctor can’t fully answer.
  4. Consider moving your embryos. If you are planning to discard extra embryos or donate them for research purposes, you may consider moving your embryos to states with more favorable reproductive laws.

The last few weeks since the leaked SCOTUS decision have been difficult for many of us – to put it mildly. Just like you, we are processing what this means both in the TTC space and more broadly. Obviously, we cannot give you medical or legal advice – you will be best served by your healthcare provider or an attorney. But please reach out if you have any questions for us, or just need someone to listen. We are in this together.

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