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The Connection Between Fertility Treatment and Overturn of Roe v. Wade

Vogue logo Vogue 1/27/2023 Fiorella Valdesolo

Last month, Tammy Duckworth, the Democratic Senator from Illinois, along with Senator Patty Murray of Washington, introduced legislation called the Right to Build Families Act, which aims to codify the protection of assisted reproductive technologies for patients (so they have a say over their own genetic material) and for doctors who provide fertility services. What Duckworth and Murray have a keen understanding of is that while access to abortion care may be the primary healthcare service impacted by the overturning of Roe v. Wade earlier this year, it’s certainly not the only one that the Supreme Court’s decision put at risk. Patients, doctors, and legal experts alike are concerned that abortion bans could actually have more far-reaching effects, namely on fertility treatments. The senators’ bill aims to anticipate those effects. As Duckworth said: “This is part of the abortion debate that most Americans were unaware of until Roe vs. Wade fell.” In honor of the 50th anniversary of the Roe v. Wade ruling this week, here’s a look at how its overturning impacts fertility.

What is IVF, and How Does It Work?

In vitro fertilization, or IVF, is a process that dates back to 1978 whereby patients receive injections of medication designed to stimulate the ovaries so they can develop mature eggs. Those eggs are then removed from the ovaries and, in a lab, combined with viable sperm so they can develop into embryos. The embryos are, in many cases, tested for genetic issues (PGT) and then usually frozen to be transferred to the patient’s uterus at a later date. “There are many situations where IVF may be needed,” says Angeline Beltsos, MD, double board certified in obstetrics and gynecology and reproductive endocrinology, and the CEO of Clinical at Kindbody. “IVF is used to help patients where natural conception is not occurring, to preserve fertility or to help couples decrease the chance of miscarriage or disease in their child.”

Why is there a concern that the Roe Decision Will Impact IVF? “Fertility treatments, contraception, and abortion are all on the spectrum of full-scale reproductive healthcare,” says Lucky Sekhon, MD, an REI and OB/GYN at RMA of New York, a fertility center. “The common thread between what fertility doctors, O.B./GYNs, and abortion-care providers do is that we allow people to have agency over their bodies.” Her colleague, Tia Jackson-Bey, MD, MPH at RMA of New York, says reproductive medicine encompasses all aspects of family planning. “I often discuss abortion care and IVF as two points on the same continuum,” she adds. “The decision to have a family when and how you want necessitates the full spectrum of reproductive rights, including access to safe abortion and fertility treatments like IVF.” And there are several reasons for concern about the impact of the Roe decision on said fertility treatments. First, the long-standing association between IVF and embryo research and the anti-abortion movement. “This is why we are restricted in the U.S. from embryo research with federal (NIH) funds,” explains Marcelle Cedars, MD, an OB-GYN and reproductive endocrinologist in San Francisco, pointing to the Reagan years and the Dickey-Wicker amendment. Then, says Cedars, there is the possibility of fertility patients having pregnancy complications that require termination. And the belief by anti-choice groups that human life begins at the moment of fertilization means that IVF, which fertilizes many eggs at once, is something they may take issue with.

What Are Personhood Amendments, and Why Do They Pose a Specific Threat?

Once a fringe idea, the overturning of Roe emboldened many anti-abortion groups to bring it to the mainstream. “One way abortion and IVF are linked is through ‘personhood’ laws which are vague measures that classify fetuses, embryos, and/or fertilized eggs as ‘people’ starting at the point of conception,” says Karla Torres, senior human rights counsel at the Center for Reproductive Rights, adding that these ambiguous amendments significantly undermine an IVF patient’s ability to make decisions about their care and doctor’s ability to provide it for them. Cedars wonders if this will limit the number of eggs that can be inseminated? What about embryos that don’t survive in culture (easily 50%) or don’t survive freezing and thawing? Will there be legal ramifications? Will efforts to reduce the number of embryos transferred by selection processes, improving maternal and childhood health, be thwarted? All these limitations would lead to lower odds of conceiving. While personhood amendments have been introduced more than 300 times in Congress, there are few states (like Georgia, Arizona, Alabama) where those laws are in effect, and there is still confusion about how to apply them. “Some states even have overlapping laws, like Alabama, which has both a trigger ban and a fetal personhood law that further adds to the lack of clarity surrounding IVF care,” says Torres. “There is also concern that IVF may become even more expensive as providers figure out how to continue providing care in states that enact abortion bans or personhood laws.” This further cuts them off for the uninsured and those for whom fertility care was already cost-prohibitive. And Sekhon underscores that using personhood as the basis of criminal proceedings is not new: it’s been used to incarcerate pregnant women who test positive for drug screens or are accused of engaging in behaviors deemed potentially harmful to the fetus. “In Alabama, there have been hundreds of prosecutions of pregnant and postpartum women for ‘chemical endangerment’ of a fetus,” she adds.

Are Certain IVF Practices More of a Target?

Selective reduction may be one, says Sekhon. The procedure performed at the end of the first trimester will terminate one of multiple pregnancies in the uterus. And there are a number of reasons a pregnant person would choose to undergo it: multifetal pregnancies put them at higher risk of complications like diabetes and high blood pressure (or preeclampsia), which can result in stroke or death, and embryos can be affected by genetic imbalances or serious diseases that are detected in genetic testing. “Despite often being medically indicated for the health of the pregnancy and the person who is pregnant, selective reduction comes into question as it involves performing an abortion, terminating a pregnancy, on one or more fetuses,” Sekhon explains. Preimplantation genetic testing (or PGT) is another common practice that could be targeted. The process of testing for genetic imbalances and mutations (which could lead to significant medical issues or syndromes and increase the risk of future cancers and conditions) is especially important for pregnant patients over 35 when the odds of these issues begins to rise. There are also, says Sekhon, numerous studies proving that PGT doesn’t harm the embryo, which, if the family doesn’t want to discard, can also be donated to reproductive research. “The use of PGT, which has revolutionized IVF and led to safer and more effective outcomes, may decrease as these practices create ethical or legal dilemmas of how to handle disease-affected or chromosomally abnormal embryos,” says Jackson-Bey. “This is a significant disadvantage to the field and the families who need these technologies to safely grow their families.” Jackson-Bey adds that the current recommendation for transfer of a single chromosomally normal (euploid) embryo could be threatened if providers or families can’t afford to store additional embryos or are criminalized for discarding them.

Does Restrictive Access to Some Medication Pose a Challenge for Fertility Treatments, Too?

Limited access to a drug like misoprostol, which is used for a number of indications including medical abortion, can be problematic. “It can be used to induce uterine contractions and speed up the process of a miscarriage for a patient with a non-viable pregnancy,” says Sekhon. This is key as most miscarriages do not occur spontaneously, and incomplete ones can lead to infections and hemorrhages. Misoprostol can also be used to soften the cervix in preparation for reparative uterine surgeries (to remove fibroids, polyps, or scar tissue) and to contract the uterine muscles to prevent blood hemorrhaging after a miscarriage or delivering a baby. “Pharmacies in states with abortion restrictions often balk at dispensing misoprostol to treat patients who need it for reasons other than abortions,” says Sekhon. “This can lead to delays in treating incomplete miscarriages and increases risk of infection, bleeding that can be life-threatening or require blood transfusions.”

Are Doctors or Fertility Companies Doing Anything—Or Should They Be Doing Anything—to Protect In Vitro Embryos?

Beltsos reports that Kindbody patients, particularly in states where there have been legislative changes after Roe, are concerned about what will happen to their frozen embryos. Embryos created through IVF are stored in laboratories to keep them safe for future use. “As the question of personhood begins to surface, patients and clinics are considering what they should do, and in certain states there is consideration to move embryos to potentially safer locations where jurisdictions of how they can be managed may be less restrictive,” says Beltsos. Some Kindbody patients have asked to have their embryos transferred to locations in other states. The company, like many others, is constantly monitoring the situation and working with organizations like the American Society for Reproductive Medicine (ASRM), which Cedars is the president of, and the American College of Obstetricians and Gynecologists (ACOG).

What is the Legal Status of IVF Right Now?

Right now, IVF remains legal in all 50 states, though state abortion bans could have an impact on access to certain practices like the freezing or discarding of unused embryos. “While IVF remains legal in the U.S., the threats to providing and accessing it should not be understated,” says Torres. “Fertility doctors and their patients, whether they live in a state that safeguards access to abortion or not, have been experiencing anxiety because of the uncertainty and chaos caused by the patchwork of legal abortion access currently happening across the country and what that may mean for IVF access and care.” Sekhon points out that certain states (like South Carolina and Alabama) provide specific exemptions for IVF in their bans, but in a state like Louisiana, embryos are legally considered a person, so patients are not permitted to discard unused ones. Anti-abortion legislators have been bolstered by the Roe decision: legislation potentially banning IVF is reportedly being discussed in Ohio, Virginia and Texas; personhood legislation that may impact IVF is expected to be introduced in Florida; and Virginia has filed a bill for next year stating that life begins at fertilization. Sekhon encourages everyone to support and follow organizations like ASMR and Resolve—“They are patient and physician education and advocacy organizations that are paying close attention to the changing landscape of reproductive rights and access to care in the U.S.” Cedars suspects that the likelihood of IVF being explicitly criminalized is low but, she adds: “Who really thought Roe vs Wade would be overturned?”


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