After the Supreme Court overturned Roe v. Wade, which legalized abortions nationwide, the fate of in-vitro fertilization (IVF), an expensive medical process that helps people become pregnant, was questioned.
During IVF, eggs are collected from ovaries and fertilized by sperm in a lab setting to create as many viable embryos as possible. Those embryos are then tested to check for viability and anomalies, then either transferred to a uterus, discarded, or frozen to be used at a future date.
Judith Daar, a professor specializing in reproductive health law at the University of Northern Kentucky, said the Supreme Court indirectly raised the issue of IVF when it referred to unborn humans in its opinion to overturn Roe v. Wade.
“If the legislature does view the unborn human life at its earliest moments as something worthy of protection over other interests, including the interest of patients informing their families, then laws could move forward that are restrictive on the very processes that are very routine to in-vitro fertilization,” Daar told NPR.
As of now, Texas’ laws banning abortion do not appear to affect IVF treatment as clinics across the state are proceeding with the procedure for now.
A Texas law passed last year broadened the definition of an “unborn child” to begin at “fertilization” and include “embryonic” stages. The wording in the law created confusion around the rights of embryos created in a lab as part of the IVF procedure, Dr. Natalie Crawford, co-founder of Fora Fertility in Austin, told the Texas Tribune.
Crawford says that doctors inject women with hormones to induce the release of more eggs during a menstrual cycle and take them out to fertilize them with sperm.
Doctors then select the embryo they believe has the “highest chance of success” for pregnancy to put back inside the woman’s uterus and freeze the other embryos so patients can try again or grow their family in the future, according to Crawford.
Once a person or couple no longer wants their embryos, they decide whether to discard them as medical waste, donate them for scientific research, or donate them to another couple, she said. This step in the IVF process is what was questioned in the face of abortion bans.
“The thing that we’re the most uncertain about is, ‘Could it impact discarding embryos, like when somebody is done with their family and they have remaining embryos?'” Crawford said. “Or if they have genetically abnormal embryos, could it potentially make it harder to discard those?”
IVF procedures are continuing in Texas because most laws against abortions focus on embryos during pregnancies, not outside of the womb, said Sean Tipton, chief policy and advocacy officer for the American Society for Reproductive Medicine (ASRM).
“While they contain phrases like ‘every stage of human development,’ or ‘from the moment of conception,’ which makes us nervous, they are written in a statute that is clearly about terminating an established pregnancy,” Tipton said.
ASRM completed an analysis of the anti-abortion laws in 12 states, including Texas, and found that Texas’ trigger law “does not appear to be applicable to IVF and reproductive medicine services prior to implantation of embryos.”
The laws in the other 11 states likely exempt IVF also, but Utah’s laws “could be interpreted to have an impact” on assisted reproductive technology under a provision against the “intentional killing or attempted killing of a live unborn child through a medical procedure,” according to the ASRM analysis.
The statute primarily focuses on pregnancies, but the term “live unborn child” is left undefined and could allow for an argument “that discarding an embryo or donating an embryo for research use is an intentional or attempted killing of a live unborn child,” ASRM’s analysis states.
Arkansas, Alabama, and Oklahoma’s attorney generals’ offices have confirmed that their states’ anti-abortion laws do not affect IVF. However, Idaho’s attorney general has said it would leave it up to local prosecutors to decide how to enforce the state’s trigger law, according to NBC News.
Texas’ trigger law will go into effect 30 days after the Supreme Court issues its official judgment to overturn Roe v. Wade.
In the meantime, Texas’ anti-abortion laws from 1925 are in effect. Those laws were written well before the first IVF baby was born in 1978, focused on pregnant women, and banned any acts where an embryo is “destroyed in the woman’s womb.”
Anti-abortion groups such as Texas Alliance for Life and Texas Right to Life also say the state’s laws and definition of abortion do not affect or inhibit IVF treatment, even though they include the term embryo.
Amy O’Donnell, a spokesperson for the Texas Alliance for Life, said her group supports a law passed in 2017 requiring the Texas Department of Family and Protective Services to post information on its website about embryo donations to other people to promote the option.
John Seago, president of Texas Right to Life, pointed to a statute the legislature amended a few years ago outlining what counts as an abortion.
“Abortion is, according to Texas law, causing the death of the child, who is a child of a woman known to be pregnant,” said Seago. “There’s also no such thing as an abortion outside of a woman’s womb, so when you look at what’s happening in the laboratory with assisted reproductive technology, that is not destruction of an embryo.”