When the U.S. Supreme Court overturned Roe v. Wade last week, it didn't affect only people who might want to terminate a pregnancy. It also has those who are trying to have a child through in vitro fertilization, or IVF, fearing that states might regulate their efforts and their eggs.
Through IVF, some of a woman's eggs are surgically removed from the ovary and mixed with sperm outside the body.
"After about 40 hours, the eggs are examined to see if they have become fertilized by the sperm and are dividing into cells," the Society for Assistive Reproductive Technology explains. "These fertilized eggs (embryos) are then placed in the women's uterus, thus bypassing the fallopian tubes."
The legal status of the fertilized eggs, many of which are not immediately implanted in a patient, is what's called into question with the overturning of Roe.
Since early May, after a leaked draft of the high court's abortion opinion came out, IVF provider Kindbody has fielded numerous calls from patients who are concerned with how they should proceed, "particularly with embryos they already had frozen," said Dr. Angeline Beltsos, CEO, Clinical, of Kindbody. Beltsos was founder and chief medical officer of Chicago-based network Vios Fertility Institute, which Kindbody acquired in early 2022.
"Let's say we have a family, and this hypothetical family has five embryos," she said. "Once they have, say, two children, what do they do with the remaining embryos?"
She said that right now, families freeze them, donate them, offer them up for use in research or quality control, or they have them discarded.
"But as anti-abortion laws begin to touch on IVF," Beltsos said, "the question becomes what is your obligation to those eggs?"
"If embryo destruction is outlawed, this will have tremendous ramifications for not only the tens of thousands of embryos — and the families who have created those embryos through careful decision-making between the physician and patient — but importantly will have ramifications for the future practice of IVF and the hundreds of thousands of Americans who rely on this technology to build their families,” Dr. Kara Goldman, medical director of fertility preservation at Northwestern Medicine said in a statement Wednesday.
"Right now, there's a lot of confusion and panic, but current legal language, in most states, is very clearly about abortions, and exclusive of IVF," said Judith Daar, the Ambassador Patricia L. Herbold dean and professor of law at Northern Kentucky University. Daar spoke this week at an American Society for Reproductive Medicinetown hall discussion on the court decision.
But people are right to be concerned about regulations regarding fertilization and statutes, such as Oklahoma's recently passed HB4327. The Oklahoma law is worded to make abortion illegal "from the moment of conception," stating that life begins at fertilization.
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"It is not inconceivable that a prosecutor would pursue criminal charges for damage to a fertilized egg that has been harmed and has legal personhood," Daar said.
"It's the issue of personhood that puts IVF clearly into focus," says ASRM President Dr. Marcelle Cedars, an IVF doctor in San Francisco. "The legal status of fertilized eggs made in the lab touches directly on IVF work, she said. ASRM on Wednesday published a report on the impact of state trigger laws on fertility treatment.
Personhood, Daar explained, would be established by a state statute that conveys full rights to a fertilized egg, so that, "therefore, anyone involved in creating a fertilized egg through IVF could be subject to penalty if harm comes to that egg. Freezing would likely be considered harm."/p> At Kindbody, which has clinics both in Chicago and in many states that have outlawed, or are likely to outlaw, abortion, "we're going to be asking ourselves, 'what is the liability we face under these new laws?' " Beltsos said. "So, we will have to be respectful and follow the laws. But it's terrifying for a provider that they could be put into harm's way by a new law."
The costs will also be real, not just emotional, she said. The time providers spend on legal considerations will increase dramatically, Beltsos said. And prospective parents in many states will have an increased burden, as Beltsos expects to see a lot more out-of-state patients.
It is not inconceivable that laws will require the costly movement of eggs, sperm and embryos, and people will also have to travel across state lines to get the care they need and deserve, she said.
"We take our responsibility very seriously," Beltsos said. "You don't get into this job lightly. And I don't need this law to remind me of it."
Should neighboring states enact regulations on IVF, Daar agreed that Illinois will certainly see fertility tourism, both because its laws are unlikely to target IVF and because it has always been an IVF-friendly state. For example, Illinois requires health insurers to cover fertility treatments for residents of the state.
The ASRM trigger law report looks at 13 states that have "trigger laws" that would ban abortion. The report touches on two states that border Illinois: Missouri and Kentucky.
Missouri's Right to Life of the Unborn Child Act does not appear to be applicable to IVF, the report said, as it deals with "everything after the moment of conception" but defines abortion as the act of prescribing or using any means with the intent of destroying the life of an embryo or fetus in its mother’s womb.
Kentucky's statute doesn't seem to affect IVF, particularly because its Human Life Protection Act "only criminalizes activities performed upon a pregnant woman with the specific intent of causing or abetting the termination."
This story first appeared in our sister publication, Crain's Chicago Business.
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