Without Roe, what happens to IVF? People struggling to conceive worry embryos are at risk

·6 min read

Virginia McFeely says she was born to be a mom, so when she and her husband struggled to conceive, they turned to in vitro fertilization for help.

After two years of treatments – including fertility drugs that gave her uncontrollable emotions, four daily hormone injections, egg harvesting and embryo implantation – McFeeley and her husband welcomed their son in June 2020.

The Supreme Court's decision to end the national right to abortions by overturning Roe v. Wade has thrown an unexpected complication into the future parenthood dreams of the McFeeleys and potentially millions of other Americans who worry anti-abortion laws halt the ability to create embryos in a lab.

"I've been screaming about this to anybody who would listen since the whole idea that Roe could be overturned," said McFeely, 37, a stay-at-home mom in Virginia. "So many people think this court ruling is about the singular issue of a right to abortion. And it's just not."

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IVF – the process by which eggs are removed, fertilized in a lab to create an embryo and implanted to create a pregnancy – is responsible for about 84,000 babies born annually, according to the Centers for Disease Control and Prevention. That's about 2% of all births.

The wording of some states' anti-abortion laws raises questions about the fate and legal status of fertilized embryos, especially if conservative states pursue what are known as personhood laws, giving legal rights to embryos and fetuses.

Oklahoma, Louisiana and Nebraska have considered anti-abortion laws granting protection to fertilized eggs, and other states' proposed "personhood" laws could do the same.

Some of the issue is driven by religious beliefs: The Catholic Church opposes IVF, although many other religions permit it. The anti-abortion group Illinois Right to Life argued that in vitro fertilization "threatens and disregards the dignity and value of the human person."

The National Right to Life Committee, the country's oldest anti-abortion advocacy group, does not have a formal position on IVF, but it opposes what's known as "selective reduction," which is the process by which a fertility doctor removes or destroys implanted embryos to make others more viable.

Why is IVF at risk?

Because it usually takes several tries to create a viable pregnancy, most IVF doctors remove and fertilize multiple eggs, then store the unused ones for later use or disposal. The IVF process can easily cost $20,000 each try, although 17 states require insurers to either provide or offer coverage, and many large corporations offer IVF coverage or other fertility treatment as part of their compensation.

It's a process used by people concerned that cancer treatment might damage their natural fertility, by members of the military delaying parenting until they're older and trans people who want to preserve their options for having children.

Because IVF was developed after Roe became the law of the land in 1973, the fate of those embryos remains in the hands of the donors, who can choose to donate them, have them destroyed or keep them in cold storage indefinitely. The Department of Health and Human Services estimated in 2020 that there were at least 600,000 frozen embryos in storage; the National Embryo Donation Center said the number could be 1 million.

Some IVF parents wonder what will happen if they implant embryos that fail to develop. Normally, they're physically removed from the uterus, but some states' anti-abortion laws could ban that.

Tracy Kubaszewski, who lives outside Atlanta, has had two IVF miscarriages and fears life without Roe could expose her to criminal charges if her next pregnancy fails.

"What if we go through this process and I have another miscarriage and it won't expel and I have to go through what is considered an abortion?" said Kubaszewski, 37, who works in IT sales. "I can't believe that's something I have to think about."

McFeeley and her husband have 10 frozen embryos, and she's rushing to be implanted a month earlier than planned before any more laws change.

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Personhood laws could halt IVF

Oklahoma has one of the nation's strictest anti-abortion laws. One portion says life begins "at fertilization." Another portion of the law refers to a gestating embryo, meaning it's developing inside a uterus, which is not part of the in vitro laboratory process.

When does life begin? Abortion views differ among religions. Here's what they say.

Dr. Eli Reshef, a fertility expert in Oklahoma City, said he is not concerned current law will restrict in vitro procedures, but personhood laws might interfere with patients' ability to receive IVF services.

"What happens if someone working in a lab drops an embryo?" asked Reshef, a senior physician at the Bennett Fertility Institute. "Do they get charged with murder?"

Melissa Brisman, a New Jersey-based reproductive law attorney, said personhood laws could make it illegal to transport fertilized embryos across state lines or expose people to child abuse accusations for mishandling embryos.

Brisman said IVF is common but many people may not talk about it publicly. The IVF community needs to push lawmakers to carve out exemptions, she said, which were unnecessary under Roe protections. Some state anti-abortion laws exempt IVF.

The National Right to Life Committee proposed model legislation to states looking to ban abortions, and although the draft permits the removal of ectopic pregnancies or a dead fetus, it does not address IVF.

"It's very hard to do that because there's so much emotion pent up into the term abortion. And there is so little education into what that means," Brisman said. "Whatever you think about abortion, we want to make sure that we preserve fertility treatment for people, for women, for men who need it."

What changed? Abortion opponents less accepting of rape and incest as 'exceptions.'

Same-sex couples who use IVF could be targeted

Dr. Collin Smikle, the founder and medical director of Laurel Fertility Care in San Francisco, said the Supreme Court's ruling could lay the groundwork for abolishing other rights, such as gay marriage, which would complicate parenthood for same-sex couples using IVF.

In his concurring opinion to the decision overturning Roe, Justice Clarence Thomas said the Supreme Court "should reconsider” rulings on same-sex marriage.

"Although it's focused primarily on abortions right now, it's a slippery slope," Smikle said. "We want people to have this choice to use IVF. And this decision profoundly affects that."

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In New York City, Nicki Rhett, 34, is 38 weeks pregnant and excited to deliver a healthy baby. She worries about the fate of her and her husband's seven frozen fertilized embryos.

She said people might think the IVF community is overreacting, but the Supreme Court's decision letting states decide on reproductive rights has shaken her.

"At what point do they consider it abortion if we chose not to keep one of those embryos because it's not genetically normal?" she asked. "I don't think anything is too far fetched right now. It's a little scary to think that really anything could happen at that point. It's terrifying."

Contributing: Michelle Hanks, Sandy Hooper, Shannon Green, Dana Branham, USA TODAY Network

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This article originally appeared on USA TODAY: How does Roe affect IVF? Some worry abortion bans may target embryos