Anna Nibley Baker, a mother of four in Salt Lake City, is reasonably certain that she and her husband will have no more children. Yet for eight years – since the birth of her last child, conceived through in vitro fertilization (IVF) – she thought fondly of the couple’s three remaining embryos, frozen and stored in a university clinic.
Today, after the Supreme Court’s decision overturning Roe v. Wade on abortion, Mme Baker, 47, like countless infertility patients and their doctors across the country, fears the fate of these embryos is slipping away from him. If states ban abortions from conception — and make no distinction between in-utero or laboratory fertilization — the implications for routine procedures in the treatment of infertility could be dramatic.
In one cycle of IVF, a field of medicine that is more than 40 years old and used by hundreds of thousands of straight and gay couples, singles and surrogates in the United States, the hope is to create as many healthy embryos as possible for each patient. Doctors usually implant one or two of these embryos into the uterus and freeze the remaining ones for the patient’s future use.
Measures taken by States to prohibit abortion raise many legal questions regarding these embryos. Will doctors still be allowed to genetically test embryos for chromosomal abnormalities or diseases like Tay-Sachs disease, Huntington’s disease and sickle cell disease, to determine which ones to implant?
Patients like Mme Will Baker be prevented from disposing of embryos they no longer need? Will they rather be encouraged to give them up for adoption or forced to keep them in perpetuity?
If embryos don’t survive being thawed for implantation, could clinics face criminal penalties?
In short, many fear that regulating unwanted pregnancies may, unwittingly or unintentionally, also control those who desire pregnancy.
Wave of concern
Since the shutdown, fertility clinics have been bombarded with frantic calls from patients asking if they should or even could legally transfer frozen embryos to states where the right to abortion is guaranteed. Embryo banks and doctors also came up with warning scenarios: An infertility doctor in Texas asked if he should get a defense attorney.
So far, the texts of the laws that come into force do not explicitly target embryos created in the laboratory. A new guidance document from the American Society for Reproductive Medicine, which represents an array of infertility treatment providers, analyzed 13 so-called trigger laws and concluded that they pose no immediate threat to patients suffering from infertility. infertility and their health care providers. And in interviews, leading anti-abortion groups have said embryos created by assisted reproductive technology are currently not a priority.
But legal experts warn that as some states develop their legislation, the status of these embryos, as well as patients and providers, could become vulnerable, especially if a passionate prosecutor decides to test this new ground.
Barbara Collura, president of Resolve, which represents the interests of infertility patients, said her organization has seen many legislative efforts to assert state control over embryos. These attempts failed: “because we fought and had the support of Roe c. Wade,” she pointed out. “Obviously we don’t have it anymore. »
Referencing the ruling that overturned Roe, she continued: “So we think the Dobbs ruling is sort of a green light for the legislation fanatics who want to go further. »
By using the word “pregnancy,” most trigger bans distinguish their target from an embryo stored in a clinic. Prohibition in Utah, where M livesme Baker, for example, frames abortion in the context of “human pregnancy after implantation of a fertilized egg,” which excludes state jurisdiction over stored embryos. (This trigger law is temporarily suspended.)
And the abortion legislation that the National Right to Life Committee holds up as a model for affiliates and state legislators refers to “all stages of development from the unborn child in the pregnant woman’s womb, from fertilization to birth.
Not a priority for anti-abortion
Representatives of four national groups that oppose abortion have said in interviews that they firmly believe that all embryos are human beings, but that regulating IVF embryos under abortion bans does not was not their first concern.
“There are so many other things to do in so many other areas,” said Laura Echevarria, spokesperson for the National Right to Life Committee, citing parent notification laws and protective programs for women. pregnant and their families. “IVF isn’t even really on our radar. »
But Kristi Hamrick, spokesperson for Students for Life Action, a major national anti-abortion group, noted that IVF has recently become part of the conversation.
Protecting life from the start is our ultimate goal, and in this new legal environment we are researching issues like IVF, especially considering a business model that, by design, ends most lives conceived in a laboratory.
Kristi Hamrick, Spokesperson for Students for Life Action
Clinics are not required to report the number of frozen embryos they store, so it is impossible to confirm a reliable figure in the United States. The most cited figure, 400,000, comes from a study by Rand Corp. of 2002, but the discounted total would be much larger.
Over the past year, Republican lawmakers in at least 10 states have proposed bills that would grant legal “person” status to such frozen embryos, according to records maintained by Resolve. None were adopted. But policy analysts at the American Society for Reproductive Medicine said such laws, which give embryos and fetuses the legal status of living human beings, “could become more commonplace in the post-Roe world.”
Mr Hamrick, of Students for Life Action, believes that ‘protection by design’ or ‘individual identity’ laws have a ‘bright future’.
And although the “trigger laws” (trigger bans) generally define abortion in relation to pregnancy, the language of some of them resonates ominously in the world of infertility. Arkansas, for example, defines an unborn child as “an individual organism of the species Homo sapiens from fertilization until live birth.”
Sara Kraner, general counsel for Fairfax Cryobank, which operates embryo storage facilities in six states, said, “We don’t know how the states will interpret the language, and no one wants to be the test case. I can make good arguments as to why the various prohibitions do not apply to stored embryos, but I cannot guarantee that a judge will side with me if I am sued. »
Judith Daar, dean of the Salmon P. Chase College of Law at Northern Kentucky University, pointed out that passing state law that would distinguish patients with infertility from those seeking abortion risks have a discriminatory impact, “given that the majority of IVF patients are white, while women of color account for the majority of abortions performed in the United States.”
Mme Baker, who became a mother through adoption and IVF, is deeply attached to her three frozen embryos. She is struggling to find a solution, especially now, when the Supreme Court ruling on abortion casts a shadow over their future.
She can’t imagine giving them to another couple, leaving strangers to bear and raise her children.
She cannot afford, financially or psychologically, to pay for their preservation in perpetuity.
She is also not ready to see them thawed and, as she puts it, “enclosed in a dish”.
What matters to Mme Baker, a critical care nurse, is that she has the right to make choices that she sees as intimate and highly individual. She doesn’t think she could have an abortion if her life weren’t in danger, but she also feels that the decision should be hers.
So she doesn’t want state lawmakers to designate the fate of her embryos.
“They are part of me,” said M.me Baker. No one but my husband and I should have the right to decide what happens to them. »
This article was originally published in the New York Times.